Punishments in Ancient,

Medieval and Modern Society

Vipin Vijay Nair

Research Associate
Jindal Global Law School
Early Concept of Crime
 Crime has been a dynamic concept changing with social
transformations.
 English society during 12th and 13th centuries included only those
acts as crime which were against the State or religion.
 Treason, rape and blasphemy were treated as crime whereas
"murder' was not a crime.
 There was no distinction between crime and torts. (only ‘wrongs’)
 'Bot' used to wash away the guilt of the wrongdoer.
 'Wite' - Additional fine payable to the king.
 'Botless' offences were also there.
 Types of Early Punishments (English society)
According to Maitland, four main form of punishments were
 Outlawry
 Blood feuds
 Bot, wite, and wer
 Loss of limbs or life
(In Anglo-Saxon Law, bot was used for quantum of compensation,
a part of which was to go to the state for its services and was
called ‘wite’ while the balance of it was to be retained by the party
injured and was called ‘wer’)
 Early Stages of punishment
 The concept of law and order was not known.
 The sense of fear and ignorance led to barbarous method of treatment of
offenders.
 Common method of settlement of disputes were through vengeance such
as dual blood feuds and reparation, etc.
 Bhagwad Gita- justified killing in some cases as a virtuous act and to act
contrary to it was considered as a sin or an act of cowardice.
 Dharmashashtra- “killing of a murderer (Atatayinah) is one’s duty, may
the killer be a preceptor, child, old man or even a learned Brahmin”
 The property related crimes were generally settled by compelling the
offender to pay compensation to the injured.
 Manu
Punishments have been prescribed by the sages, so that righteousness may not be
outraged and unrighteousness may be cured
Punishment signifies Danda
 Kautilya
Punishment if too severe alarms a man, if too mild frustrates him, but if properly
determined, makes man conform to Dharma or righteous conduct.
The function of law was to bring the wrong-doer on the right track by a change in his
attitude.
 One peculiar feature of ancient punishment was that it acknowledged the
supremacy of Brahmins in matters of punishment.
For eg, where the normal punishment for an offence was death and if the
offender happened to be Brahmin, he was to be punished only with shaving of
his head.
Types of Early Punishments (India)

 Admonition or warning (Vakdanda)

 Remonstrance (Prayaschitta)
 Fine (Arthadanda)
 Imprisonment, death or mutilation (Vadhadanda,
Mrityudanda or Aung Vichheda).

 The first-offenders were usually punished with

admonition.
 Punishment in Medieval Period
 Religious predominance in the western period
 Crime identified with sin and violence was abhorred.
 Aim of punishment- notion of cleansing of soul for the reformation of
criminal.
 Ordeals by fire and water were commonly used to establish the guilt or
innocence of the accused.
 Offender’s guilt can be washed away by penance, remorse or expiation.
This finally led to concept of solitary confinement(putting wrongdoer in
isolation). Atmashudhi.
Note- However Garafalo rejected the theory of moral expiation on the
ground that a criminal by nature lacks moral consciousness and therefore
expiation has no significance.
Criticism-applicable on habitual and recidivism only
 Ordeal

 Strictly practiced according to the rules of

Dharamshastra
 Divine means of proof about guilt
 Referred by various names like Samayakriya,
Sapatha, Divya or Pariksa
Types of Ordeal

 Balance Ordeal
 Fire Ordeal
 Water Ordeal
 Kosa Ordeal
 Poison Ordeal
 Types of Ordeal

 Accused was weighed against

a stone.

 If stone was lighter, charge

Balance Ordeal was considered to be false.

 If the stone was heavier,

charge stood proved.
 Types of Ordeal

Fire Ordeal

 Going through nine circles with red-

hot iron ball in hand
 Walking over burning fire
 Lifting up a piece of iron from
boiling oil
 Licking the red-hot iron bar with
tongue
Types of Ordeal
Water Ordeal

 Accused was thrown into deep

and rapidly flowing river
 Thrown into deep well of water
 If he is not guilty, he would not
drown or die.
 “Kill me if I lie & Angels
preserve me if I speak the truth”
Types of Ordeal

 Accused was made to eat

poison
Poison Ordeal  Take out a living serpent from a
pot
 If survived harmless, he is
innocent
 Types of Ordeal

 Mildest form of ordeal

Kosa Ordeal
 Accused was taken to the temple
and made to drink holy water
 If he vomits blood, he is guilty
 Punishments in Medieval India
 Muslim rule
 Aim of punishment- Retribution
 Irrational and discriminatory in nature.
 Failed to meet ends of justice.
 4 categories of punishment
1. Kisa (retaliation)-willful killing
2. Diya-blood money-to forgo his right to claim death of a murderer.
3. Hadd-offence against God or against ‘public justice’-Punishment cant vary-
Judge no discretion-severe and barbarous
4. Tazeer-indefinite and discretionary punishment-awarded by Magistrate.
 Common forms of punishment

 Death Penalty
 Exile
 Banishment (Kalapani)
 Social Degradation
 Corporal Punishment
 Imprisonment
 Imposition of fine
 Various Forms of Corporal Punishments
practiced commonly before 19th century
 Flogging
(India recognized it under Whipping Act, 1864 which was later abolished in 1955.
 Mutilation
 Branding
Stigma and warning to offenders.
Burglars were marked with letter T and repeaters with letter R.
 Stoning
Still prevalent in Islamic countries
 Pillory
Criminal made to stand in a public place with his head and hand locked in an iron frame.
 Amercement/fine
 Punishment in Modern Society
 Background: The Code of Hammurabi in the year of 1780 BC is said to
express the concept of punishment in the form of lextalionis (the law of equal
retaliation).
 The same is clarified in Mosaic Code as ―an eye for an eye, a tooth for a
tooth….a life for a life.
 Kant was also of the view that human beings are free and while doing any act
they must recognize their deeds and accept their deserts.
 Beccaria (1738-1794) in his book Dei delitti e delle pene (On Crime and
Punishment) opined that the punishment should be proportionate to the harm
done to society, should be identical for identical crimes, and should be applied
without any reference to social status of the either the offender or the victim.
 Jeremy Bentham of Neo-Classical School said that punishment should be
primarily justified because of its deterrent effects.
 The 19th century heralded the era of positivism which was
influenced by the science. It discarded both the ideas of classical
and neo classical school. It negated the proportionality principle
for awarding the punishment and the deterrence effect of
punishment. It shifted the focus of punishment from crime to
criminal. The offender doesn‘t require the blame rather the
treatment.

 Ihering said that punishment is a means to a social end.

 Durkheim boldly stated that ―punishment is nothing but

meaningful demonstration i.e. punishment has no conscious
intention at its core, but is born out of an emotional and
psychological reaction to an offence caused.
 Recent definitions

 Punishment is the conscious infliction upon a disturbing

individual of undesired experience solely in the interest of
his welfare. (D.R. Taft, Criminology 3rd Edition p-353)

 It is an infliction or imposition of undesirable and

unpleasant consequences on a person by an authority for a
wrong done by him.
 Indian Scenario
 With the advent of British rule in India, the Indian Penal Code was enacted in the year of 1860
which governs punishment till today.
 the choice of punishment is very limited.
 The Indian Penal Code, 1860 in Section 53 of prescribes only five kinds of punishment i.e.
1. death,
2. imprisonment for life,
3. imprisonment with labour rigorous or simple,
4. forfeiture and
5. fine.
 In all these, imprisonment has been widely used punishment
 In Bachan Singh case the Supreme Court refrained from stretching its arms in the matter of
awarding death penalty. Later on, in Macchi Singh case, it opened its doors for rationalizing the
principle of rarest of rare principle which has not been uniformly applied in determining the
sentence of death or imprisonment for life.
 Reformative approach

 At the pre-trial stage,

bail provisions, compounding of offences(Sec-320, CrPC) and plea bargaining
(section-265, CrPC) etc.
 At the post trial stage,
Section 360 and 361 of Code of Criminal Procedure, 1973 provides for admonition to
first time offender for an offence punishable with imprisonment less than 2 years.
Conditional discharge is also provided for.
Section 357-359 of Code of Criminal Procedure, 1973 provides for compensation to
victims of crime.
 Post sentencing stage
includes parole, commutation and remission of sentence (Article 72 and 161 of the
Constitution of India, 1950).
 Contd.
 Finally, the best example of corrective and rehabilitative approach is set by
Juvenile Justice (Care and Protection of Children) Act, 2015.
 The criminal jurisprudence dealing with the imposition of sentence has
undergone a drastic change with the enactment of the Probation of Offenders
Act, 1958 which is a milestone in the progress in the modern liberal trend of
reform in the field of penology. It is the result of the recognition of the
doctrine that the object of the criminal law is more to reform the individual
offender than to punish him.
 However there are various instances where community service as a mode of
punishment has been awarded by all the courts. For instance, BMW hit and
run case60 Supreme Court awarded it
 Contd.
 All India Committee on Jail Reforms (1980-83) emphasized that imprisonment
is not always the best way to meet the objectives of punishment, the government
shall endeavor to provide in law new alternatives to imprisonment such as
community services, forfeiture of property, payment of compensation to victims,
public censure etc. in addition to the ones already existing.
 Different treatment approaches are necessary because programmed treatment
cannot be equally applicable to all types of offenders, treatment modalities
should not be constant for all the offenders in all geographical areas and
circumstances.
 The Committee on Reforms of Criminal Justice, 2003 popularly known as
Malimath Committee Report also recommended that the judge has wide
discretion in awarding the sentence within the statutory limits. There is need for
such law in our country to minimize uncertainty to the matter of awarding
sentence. Different kinds of punishment are the need of the hour.
 Contd.
 The National Policy on Prison Reforms and Correctional
Administration, 2007 has also pointed out that imprisonment is
not always the best way to meet the objectives of punishments the
government shall endeavor to provide; in law new alternatives to
imprisonment.
 The Prison Assessment and Proposed Rehabilitation and
Reintegration of Offenders Report in its key recommendations,
has recommended the establishment of a restorative justice
program to minimize offenders being incarcerated for minor
offences.
 Four Sentencing Philosophies

 Justice/Retribution

 Incapacitation

 Deterrence

 Treatment/ Rehabilitation
And as diseases vary, aids must vary; A thousand kinds
of ill, a thousand cures.

- Jeremy Bentham

Thank You