PROJECT ON

Forms of punishment from primitive to modern times. Justify

one form of punishment from your standpoint and the way
forward.

A project submitted to
University of Mumbai for partial completion of the degree of
Bachelor of Laws
Under the Faculty of Law

By
Ms. Pradnya Devrao Kamble
Roll No. 102
SY-LLB
Under the Guidance of
Prof. ______________

SIDDHARTH COLLEGE OF LAW

Mumbai 400-023
2020-2021
 DECLARATION

I the undersigned Ms. Pradnya Devrao Kamble here by, declare that the work
embodied in this project work titled Forms of punishment from primitive to
modern times. Justify one form of punishment from your standpoint and the way
forward. forms my own

contribution to the research work carried out under the guidance of Prof.
______________ is a result of my own research work and has not been
previously submitted to any other University for any other Degree/Diploma to
this or any other University.

Whenever reference has been made to previous works of others, it has been
clearly indicated as such and included in the bibliography.

I, here by further declare that all information of this document has been
obtained and presented in accordance with academic ruled and ethical conduct.

Pradnya Devrao Kamble.

Name and signature of the learner
Date: 08th April 2021

Certified by
 ACKNOWLEDGMENT

To list who all have helped me is difficult because they are so numerous, and
the depth is so enormous.

I would like to acknowledge the following as being idealistic channels and fresh
dimensions in the completion of this project. I take this opportunity to thank the
University of Mumbai for giving me chance to do this project.

I would like to thank my Principal, Mrs. Sandhya Dokhe for providing

necessary facilities required for completion of this project.

I take this opportunity to thank our Coordinator Prof. _________, for his moral
support and guidance.

I would like to express my sincere gratitude towards my project guide Prof.

___________, whose guidance and care made the project successful.

I would like to thank my College Library, for having provided various reference
books and magazine related to my project. Lastly, I would like to thank each
and every person who directly or indirectly helped me in the completion of the
project especially my parents and peers who supported me throughout my
project.
 INDEX

SR.NO CONTENT
1 PROJECT NAME

2 DECLARATION

3 ACKNOWLEDGMENT

4 INTRODUCTION

5 CASE LAW

6 CONCLUSION
7 BIBLOGRAPHY
Introduction
Punishment can be deemed to be a physical pain inflicted upon a person for doing something wrong.
Punishment can also be in the form of penalty. People sometimes are required to do social services or
have to pay for the wrong doings. Oxford dictionary explains it as to cause (An offender) to suffer for an
offence and punishment being the act or instance of punishing.

In the dictionary meaning, the term ‘punish’ means to make someone suffer from a crime or for an
unlawful behavior or the imposition of penalty as punishment for an offense. In criminal law,
‘punishment’ means any pain, penalty, suffering inflicted upon a person by the authority of law and the
sentence of the court for some crime committed by him or for his exclusion of a duty enjoyed by law.
The punishment maintains the law and order, it safeguards the person and the property. The culprit
abstains from wrongdoing for the fright of punishment and therefore, the punishment and the law are
indivisible.

Meaning of Punishment

The concept of punishment has also been recognized in the Dharmakshetra. In the Hindu shastras, the
king had the superiority to penalize the wrongdoer or law-breaker and protect the law follower. Thus, it
is clear-out that punishment is one of the oldest practices of managing crime and criminality. The
objective of the punishments and it makes changes with the converting of times. The procedures for
executing the sentences are also altered and supporting human rights. As we recall our past we have seen
that the death sentence was given for a very small cause but it has been awarded only in the ‘rare cases’.
Even still some societies are there which use ancient forms of brutal punishment but the punishment has
also evolved along with civilization and has become less brutal.

Background

Philosophical reflection on a penalty has helped cause and is itself a part of controlling developments
within the understanding of penalty that have taken place outside the academy within the world. A
generation part sociologists, criminologists, and penologists became disillusioned with the rehabilitative
effects (as measured by reductions in wrongdoer recidivism) Of programs conducted in prisons geared
toward this finish in 1974. 
Concurrently with these generally socio-legal developments, philosophers were crafting their own
arguments, renewing classic views related to the names of Immanuel Kant and George Wilhelm
Friedrich Hegel to determine two principal ideas that work astonishingly well with those reviewed high:
First, philosophers urged that the reformation of guilty offenders isn’t the aim, or maybe a subsidiary
aim among many, of the practice of a penalty. 
Second, justice or fairness in penalty is the essential task of sentencing, and a simple sentence takes its
character from the blameworthiness of the wrongdoer and also the damage the crime caused the victim
and society. 
Probation was there because different sanctions were received associate enlarged roles, however, release
on parole came to a virtual finish. In its place was uniform determinate sentencing, which might avoid
the follies of unrealizable pardon goals and guarantee each disabled and even-handed justice for all
wrongdoers.

Theories of Punishment

Deterrent theory: Deterrent theory of punishment accepts the reality that harsh pain is reflected on
offenders so that it deters them. The crime committers possess pleasure in whatever crime or activity
they do. And to compensate, punishment should be equivalent to the crime committed by the offender to
prevent the crime to be repeated. The punishment executes the component of pain to rectify the pleasure
caused in the mind of the criminal.
This pain helps in strengthening the man for the future. J.Bentham, the founder of this theory states
‘General prevention to be the chief end of punishment as it’s the real justification. If we could consider
an offence, which has been committed as an isolated fact, the like of which would never recur,
punishment would be useless. It would only be adding one evil to another. But when we consider that an
unpunished crime leaves the path of crime open, not only for the same delinquent but also for all those
who may have the same motives and opportunities for entering upon it, we perceive that punishment
inflicted on individuals becomes the source of security for all.
That punishment which considered in itself appeared base and repugnant to all the generous sentiments
is elevated to the first rank of benefits when it is regarded not as an act of wrath or vengeance against a
guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable
sacrifice to the common safety.

Retributive theory: Retributive theory stresses on the concepts of paybacks and retaliation instead
of well-being and safety. Harsh punishment is given to the criminal by way of putting him in prison
beneath the unpalatable form. It also states that punishment given is a cessation in itself so that no
replication of crimes takes place and it also states that the level of punishment should be equivalent to
the seriousness of the crime. Although this theory is not favoured by some lawyers, sociologists, and
criminologists as they think it’s excruciating and oppressive, J.M. Finnis argued in favour of this theory.
He considered it a balance of parity in the distribution of pros and cons by restraining the will of
offenders. Sir Walter Moberly states:
Punishment serves to express and to satisfy righteous indignation which a healthy society treats as
transgression. As such it is an end itself. Kant argues that ‘retributive theory sees justification in the fact
that an offence has been committed which deserves the punishment of the offender. He also argues that
this theory is not only a condition for punishment but also a sufficient one and can be called ‘natural
justification.’ Natural justification is an individual thinking that a person committing a crime should be
punished and a good individual should be rewarded. Bentham too saw natural retribution as vengeance.
To conclude, the retributive theory focuses on payback and retaliation and giving punishment according
to the seriousness of the crime.

Preventive theory: Preventive theory works on the fact so as to prevent the crime instead of gaining
vengeance. Here, punishment is considered as a kind perspective which states that criminals should be
sent to prison so as to protect society from any anti-social acts and to prevent further crime from the
same criminal.
Bentham favoured preventive theory as it daunted the offenders from any wrong acts along with
punishing them gently and forbearing them. Preventive theory sets restrictions on offenders so as to
prevent further crime and offence. The punishment given to the offender here is for safeguarding the
harmony of the society. It rarely works for making a criminal a better person. Thus, keeping the criminal
in prison only makes him violent and frustrated. And if a criminal repeats the crime he is reproachable
for death and imprisonment.
Thus, preventive theory helps in only preventing the crime to happen in the future by keeping the
criminal behind the bars.

Reformative theory: Reformative theory is a theory that helps in transforming a criminal into a
better person and focuses on the renewal of a man so as to begin a new life. This theory is based on
reforming the criminal or the offender by providing education and certain other individual treatments.
Criminal is treated as a human and reformative theory focuses on making the criminal a better person by
providing these measures so that he is accepted by society again. The reformative and deterrent theory
works together.
The criminal is punished where he realizes his guilt and wishes to reform himself for good. It is one of
the positive theories and its aim is the reformation of the offender. It can be seen as the rehabilitative
process and not a punishment. This theory helps in making the offender a good citizen. The reformation
theory works through the process of individualization

Types of Punishment

Capital Punishment

Capital punishment means the legally authorized killing of someone as a punishment of a crime, a death
penalty for a crime. In simple words, it means a government-sanctioned practise where a person is put to
death by the state as a punishment for a crime. In ancient times, capital punishment was executed for
every small crime. It is the most extreme form of punishment. The procedures of execution of the death
penalty have varied from time to time.

Capital Punishment (Death sentence)

As we have already studied that capital punishment means the infliction of death by an authority. In
modern times, capital punishment is the most severe punishment of all, which is given for severe
offense. It is the most debated topic among modern penologists. It is not awarded for small offenses just
like in early times or ancient times. It is given for the case of a severe offense. As society develops the
concept and producer of punishment have been changed. It is awarded only in the ‘rarest of rare cases’
under the Indian Penal Code.
There are some offenses under the Indian Penal Code, in which capital punishment may be given by the
court.
Under Section 121, states that waging, or making an attempt to wage war against the government of
India.
Under Section 132: Abetment of mutiny, if mutiny is performed.
Under Section 194: Giving or Fabricating False Evidence upon which an innocent person suffers death.
Under Section 302: Punishment for Murder. Under Section 303: Murder by Life Convict.
Under Section 305: Abetment of Suicide of a Minor or an Insane or an intoxicated person.
Under Section 307: Attempt to Murder by a person who is under sentence of life imprisonment, if the
hurt is caused.
Under Section 364A: Kidnapping for Ransom etc. Under Section 396: Dacoity with Murder.
After the Criminal Law (Amendment) Act, 2013 the following are the offenses under the Indian Penal
Code in which the death penalty may be awarded by the court:
Under Section 376A: Punishment for rape resulting in death or permanent vegetative state. Under
Section 376E: Punishment for repeat wrongdoer of rape.

Corporeal Punishment

It means a punishment that is intended to cause physical pain on a person. It is also known as physical
punishment. It is a punishment for the violation of law which involves the infliction of pain on the body.
The objective behind corporeal punishment is not only to punish the offender but also to prevent the
repetition of the offense by such offender or any other person.

Social Punishment

It is a punishment in which a person is restrained to make any kind of contract from the other persons or
to move him at other places where he has no contract with the other persons can help him in any manner
otherwise he is also liable for the punishment for it.
Financial Punishment

It is also known as imposing for fine. It was the common way of punishment which was not significant
in nature and it was assigned specially for the breach of traffic rules, revenue laws, and minor crime. It
also includes the payment of compensation to the victims of the crime and also the payment of the costs
of prosecution.

It can be very well stated that the enactment of any legislation brings about two folds in the society:
Obedient to that law Breakers of that law.
The theories of punishment serve the purpose of transforming or changing these breakers of law to the
group of those who are obedient to the law by any means.

Imprisonment

Imprisonment is the word which means taking away the freedom of prisoners when they are punished by
a court of law. They are locked up in prison and all the rights are taken away they are not given any
rights which are under Article 21 or 32 of the Constitution of India. They have to stay in jail till the end
of the imprisonment given by the court of law before that they are not allowed to be released from the
jail.

Types of Imprisonment
Mandatory imprisonment- When any person commits a crime it becomes mandatory to give
him/her punishment for that crime because if the person who commits crime are left with no punishment
he will become dangerous to society it harms whole public. This is the reason criminals are not kept free
after he commits any crime they have to face imprisonment.

Maximum sentences- The person who commits crime they got life imprisonment and the duration
of life imprisonment is decided by a court of law. The minimum life imprisonment is 14 years but it can
extend upto 30 years of life imprisonment.

Minimum life imprisonment- The minimum life imprisonment is for 14 years. It is decided by
the Supreme Court of India.

False imprisonment- Many times people unlawfully caught by the police and get imprisonment
because of false crime.
Life Imprisonment justified and Purpose of Life Imprisonment

Life imprisonment means the whole life in prison. Prisoners has to end up their life in prison. They have
no other options of release. According to the Supreme Court life imprisonment means jail term for the
prisoner for entire life.
There will be no release before fourteen or twenty years of life imprisonment. The prisoner has no such
right as to release. The period of life imprisonment cannot be reduced. It cannot be less than 14 years.
The report is based on the punishment of imprisonment for life in the Indian Penal Code. Itdeals with the
sentence of imprisonment for life which is rigorous or simple. The State Government has clarified the
law on imprisonment for life in this report. This report is made by the Law Commision of India for the
clarification of law. According to this report, the offences under Indian Penal Code have come into
effect in the year 1956 on 1st of january. And the Code of Criminal Procedure came into Existence in the
year 1955. After this report two old laws were replaced namely punishment of transportation for life.
Purpose of Imprisonment

There are five purposes of Life imprisonment:

Punishment: when any person commits a crime, they are punished by a court of law then put in the
jail that deprives them of all their freedom and removes them from their society. Punishment may
change the person into a good person and return their fundamental freedoms and also give them a
chance to live in society freely with their family members.
Sometimes it also provides them work so they again, don’t commit a crime. So punishment is important
for the criminals.
Deterrence: deterrence is another type of punishment for the offenders so that they don’t repeat their
crime again because punishment teaches values to the offender and give them an opportunity to change
themselves and transform them into a law-abiding citizen.
Public protection: when any person commits big crime like murder or rape, they have to face life
imprisonment as ordered by the judge. This is the only reason we can protect the public from these
criminals.
Rehabilitation: rehabilitation means when a prisoner is ready to accept the crime he has committed
and take some necessary steps to change themselves in that case the government chooses to give them
an opportunity, in prison itself, to change.
No other choice: after committing crime prisoner have no choice of release they have to face
Imprisonment.

Life imprisonment in India

Under article 72 and 161 CrPC life imprisonment means the entire life in prison which is guaranteed
under the Code of Criminal Procedure. The minimum duration of life imprisonment is of 14 years and
also commuted the death sentence to the prisoner.

Double Life Imprisonment in India

Like everyone human being has one life, as prisoners has also one life to live so prisoners cannot serve
consecutive sentences of life imprisonment. But according to Supreme court constitutional bench life
sentence would be twice or thrice of the heinous crimes like rape murder, etc. The court said that
multiple life imprisonment will be served consecutively. Chief Justice of India has interpreted the law
that in multiple imprisonment prisoners would be anomalous and irrational. In a first, rare double-death
and double-life sentence for man who raped, murdered 2-year-old girl.

In Nagpur city the 21 year old man raped her 2 year niece and murdered her. The case was filed in the
Bombay high court. The sentence was the first of its kind, given under Section 376A of the Indian Penal
Code, under an amendment made in light of the gruesome Nirbhaya rape case in delhi( 2012 Delhi gang
rape). The Nagpur bench confirmed the rare double-death and double-life sentence to the 21 year old
man. In the Divison Bench, comprising Justice Bhushan Gavai and Justice Prasanna Varale confirmed
the verdict of a Yavatmal sessions court sentencing Shatrughan Masaram to death for raping and
murdering his two year child.

Forfeiture of Property

In dictionaries, the ‘forfeiture’ means something that is lost or surrendered as a penalty and the word
forfeiture of property means the loss of property or money because of a breach of legal obligation. There
are three sections in the Indian Penal Code that described the forfeiture of the property, and they are
Under Section 126: Property used or intended to be used in committing depredations on the territories of
friendly countries. Under Section 125 & 127: Property received with the knowledge that the same has
been taken by waging war or committing a robbery. Under Section 169: property purchased by a public
servant who is legally banned to purchase for such property.

Fine

Generally fine means Imposing of monetary liability on an accused in consequences of the offense
committed by him. There are some offenses which provide a fine with imprisonment. The amount of
fine depends upon the commands of the court.

How many years is a Life Imprisonment?

Years are not fixed for life imprisonment. It is for whole life also. Because of Life imprisonment
prisoner can get death penalty if he or she has committed henious crimes like rape and murder. For this
type of crime Supreme court said prisoners will get double- prisonment. There is no uniformity in the
life imprisonment. Life imprisonment is for 14 years. It may also last for 25 years. It depends on the type
of crime committed by the prisoner. Prisoner has no right of the release. This is a very big
misconception in Indian law that Life imprisonment can only of 14 years it can extend by noticing the
action of the prisoner in the prison. It can be reduced if prisoner proves themselves guilty of not doing
the crime. Its minimum limit is 14 years.

Advantages and Disadvantages of Life Imprisonment

Advantages

If a person commits a crime like rape or murder, it gives a very serious impact on the life of victim or
victim’s family because of this their lives get destroyed. So accused get life imprisonment or death
sentence.
Capital punishment means if legally someone is killing someone then as a punishment taking the life of
the person is not valid.
Life imprisonment gives a chance to the criminals to realize their mistakes so their life imprisonment or
death sentence can be pardoned or remitted.
Prisons give chance to prisoner to study and explore themselves in good works they provide them
employment so they can change the prisoner to release them from the prison.
Prisons for youth is very favorable. They try to help them with all the facilities and guidelines to
improve them and support them so they can live in the particular society with normal people.
Prisons provide good food and health facilities and many more facilities to the prisoners to change
themselves or to live a happy life.
Many prisoners get released of their change and they are allowed to live in the particular society and
with a job, so they can earn something for their own lives and change their life and their family’s life.

Disadvantages

Life imprisonment cannot be given to prisoner for capital punishment as they are not only responsible
for the crime. This is the biggest mistake it can make the prisoners’ life hell.
Capital punishment is the way in which we can pass some messages to the normal individual.
Capital punishment help to remove dangerous criminals from society making it a safer place for the
people.
Life imprisonment can help people from the discrimination which they are facing in the society due to
their crime, which should be corrected by giving capital punishment to murderers.
 Pardoning Power of the President

President of India is the head of the state. And the powers of the president is always termed as an
extraordinary power which includes grant of pardon. The constitution of India also grants the power of
pardon to the President of India. The power of pardon is mentioned in Article 72 of the Indian
Constitution.

Rules of pardon the death sentence: If punishment is given by the court martial the president
has the power to pardon or commute the sentence of any person. The offences which is committed
which is related to law or it belongs to the executive power of the union. President can pardon death
sentence.

Pardoning Power of the Governor

Meaning of discretionary power

Discretionary means “freedom to act according to one’s judgment”. Governor has the power of
discretion means he has the power or right to take decisions freely. He can exercise his power in his own
individual judgement without the advice of the council of ministers.

Discretionary power is divided into two parts

Specific Discretionary Powers: in this Governor uses his specific powers to take the decisions of
certain case. Certain responsibilities are provided to governor for the discretionary power. He is not
bound to anyone. He doesn’t have to ask anyone for the decision. Powers can only be used in time of
legal requirement.
Circumstantial Discretionary Power: many times the power of the Governor become
circumstantial. Governor is not questionable in any manner if he doesn’t take decisions in the time of
discretion. Governor decision is final in his discretion.

CASE LAWS

1. Maru Ram v. Union of India

Citation: (1981) 1 SCC 107

Type: Writ Petition No, 865 of 1979

Coram: Y.V. Chandrachud, CJ., P.N. Bhagwati, V.R. Krishna Iyer, Syed Mutaza Fazalai And A.D.
Koshal, JJ.

Decided on: November 11, 1980

Full Text Available Here

Facts
Over two thousand life convicts challenged the constitutionality of the newly legislated Section 433A of
the Code of Criminal Procedure, 1973 (CrPC) before a five judge bench of the Supreme Court.
 Findings
The Court examined Section 433A of the CrPC, a provision brought in place a mandatory minimum of
14 years before which a person sentenced to life imprisonment for a capital offence could be considered
for remission. It held the law to be constitutionally valid, as it was neither arbitrary nor irrational. The
Court further laid down the law that life imprisonment meant imprisonment till the end of life, subject to
the appropriate government choosing to release the prisoner in terms of Section 433A of the CrPC.

2. Swamy Shraddhanada @ Murli Manohar Mishra v. State of Karnataka

Citation: (2008) 13 SCC 767

Type: Criminal Appeal No. 454 OF 2006

Coram: Aftab Alam, B.N. Agrawal And G.S. Singhvi, JJ.

Decided on: July 22, 2008

Full Text Available Here

Facts
A two-judge bench of the Supreme Court hearing a death sentence appeal differed on the question of
sentence, with Justice Katju choosing to uphold the death sentence and Justice Sinha seeking to
commute to life. The matter came before a three-judge bench to resolve the conflict.

Findings

The three-judge bench of the Supreme Court opted to commute the death sentence to life imprisonment.
In doing so, it chose to create a via media between what it saw as life imprisonment simpliciter and the
death sentence, by creating a special category of sentence, the ‘fixed term sentence’.

These are life sentences that would have a fixed minimum term, ranging from 20 years, 30 years upto
the end of life, and for such term there could be no remission of sentence by the appropriate government.
In this case, the Supreme Court imposed the condition that there will be no remission for the rest of the
prisoner’s life.

Conclusion
The Crime rate in India has been considerably increasing every year and thus the convictions rate has
become very low which to the courts are warding very meagre punishments by using their wide
discretionary powers. There are more chances to include lenient punishment by the proven offenders due
to the loose framework of the legislature in fixing the punishment for several offences within the code. 
There’s more probability to use the personally favoured brain and individual opinion of the judicial
officers while conforming the sentence to the offenders, due to wide discretion available within this
sentencing jurisprudence.
Actually, the developing country decides the safety and security of the people along with the
developmental aspects of that country. Crimes can be found everywhere in our lives and have affected
every sector of society. This age-old colonial punishment system isn’t suitable to manage the crimes and
to diminish its allied bad effects on society by imposing proper punishment to the responsible persons
and implementing them with no delay.
Bibliography –

lawbookindia,
Google,
iblogpleader,
Jhabwala.