Punishment: Origin & Jurisprudence

PROJECT SUBMITTED TO:

Ms. Shraddha Rajput
(PROFESSOR OF LEGAL METHOD)
PROJECT SUBMITTED BY:

PRAGYA PATEL
Semester I, Section A

ROLL NO. 108

SUBMITTED ON: 2ST SEPTEMBER 2013

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

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DECLARATION
I hereby declare that this research work titled Punishment: Origin &
Jurisprudence is my own work and represents my own ideas, and where others ideas
or words have been included, I have adequately cited and referenced the original sources. I
also declare that I have adhered to all principles of academic honesty and integrity and have
not misrepresented or fabricated or falsified any idea/data/fact/source in my submission.

...
Pragya Patel
Roll No- 108
Semester-1(section A)

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ACKNOWLEDGEMENT
First, I would like to thank my English Language teacher Prof. Mrs. Shraddha
Rajput for giving me opportunity to work on this project named Punishment: origin &
jurisprudence.. Her guidance and support has been instrumental while making my
project on this interesting yet important issue.
I would also like to thank all the authors, writers, columnists and social thinkers
whose ideas and works have been made use of in my Project.
My heartfelt gratitude also goes to all staff and administration of HNLU for the
infrastructure in the form of our library and IT lab that was a great source of help in the
completion of this Project. I also thank my friends for their precious inputs which have
been very useful in the completion of this Project.
I would also like to thank my parents, dear colleagues and friends in the University,
who have helped me with ideas about this work.
I hope you will appreciate my true work which is indeed a hard work and a result of
my true research and work.
Pragya Patel
Roll no. 108
Semester- I (Section A B.A. LL.B. (Hons)

TABLE OF CONTENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.

INTRODUCTION.1
OBJECTIVES2
RESEARCH METHODOLOGY...2
ORIGIN & JURISPRUDENCE OF THE PUNISHMENT...3
THE HISTORY OF PUNISHMENT BY LEWIS LYONS...4
THE CONCEPT OF PUNISHMENT UNDER ( MANU SMIRITI)...6
CONDITION OF THE SYSTEM OF PUNISHMENT IN INDIA (NOW)..7
CONCLUSION12
REFERENCES.13

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INTRODUCTION

What is PUNISHMENT?
In criminal law, any pain, penalty, suffering, or confinement inflicted upon a person by the
authority of the law and the judgment ad sentence of a court, for some crime or offense
committed by him, or for his omission of a duty enjoined by law. Punishment is
the authoritative imposition of an undesirable or unpleasant outcome upon an individual or
group by law enforcement, in response to behaviour that an authority deems unacceptable or
a violation of some norm. The unpleasant imposition may include a fine, penalty,
or confinement, or be the removal or denial of something pleasant or desirable. The
individual may be a person, or even an animal. The authority may be either a group or a
single person, and punishment may be carried out formally under a system of law or
informally in other kinds of social settings such as within a family. Negative consequences
that are not authorised or that are administered without a breach of rules are not considered to
be punishment as defined here. The study and practice of the punishment of crimes,
particularly as it applies to imprisonment, is called penologyi, or, often in modern
texts, corrections; in this context, the punishment process is euphemistically called
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"correctional process". Research into punishment often includes similar research into
prevention.
Fundamental

justifications

or

alternatives

to

punishment

include: retribution, deterrence, rehabilitation, and incapacitations. The last could include
such measures as isolation, in order to prevent the wrongdoer's having contact with potential
victims, or the removal of a hand in order to make theft more difficult.Of the four
justifications, only retribution is part of the definition of punishment and none of the other
justifications is a guaranteed outcome, aside from obvious exceptions such as an executed
man being incapacitated with regard to further crimes.

OBJECTIVES OF STUDY

The foremost objective of this project is to know about the origin of the
punishment
To know the global view on the jurisprudence of the punishment.
To know about the

SCOPE OF THE STUDY

The project covers the topic of Punishment as a concept: what it is and what is its origin&
system followed then & now. The history of punishment given by LewisLyons& also the
concept of punishment under modern jurisprudence given in Manu smriti is also thrown light
upon and the views that shaped the System are also discussed so that the reader is fully aware
of the origin of this concept ofpunishment. & also the condition of the punishment system in
India is discussed. A short brief of 5 types of punishments given in IPC is also discussed so
that the reader is also aware about the current punishment system of India.

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RESEARCH METHODOLOGY
This project has been done taking the help of secondary data i.e. websites, articles,
books. It is descriptive in nature. To construct this project, the help of dictionaries, legal
websites as well as social science websites, books on the said case have been taken. The
points as discussed in this project include the study of different sources on the topic as
well as the points guided by the faculty. Footnotes have also been provided for
acknowledging the sources.

ORIGIN & JURISPRUDENCE OF THE

PUNISHMENT
It is impossible to trace the origin of punishment. It appears to be a well-developed social
institution in the most primitive societies and at the dawn of known history. Much speculation
has been made as to its origin, but in the main rather narrow definitions have tended to justify
special concepts. The following is an example: "Punishment is an evil inflicted upon a
wrongdoer, as a wrongdoer, on behalf, and at the discretion of society in its corporate
capacity, of which he is a permanent, or temporary, member." It would exclude the
punishment of captured enemies and animals. The theory that punishment is the outgrowth of
private vengeance is supported by overwhelming authority. Mac-Dougal defines it as "the
binary compound of anger and positive self feeling." Let us go to the simplest sources for
information. If I step on my dog accidentally, even though he is ordinarily very friendly, he
may bite me. This, I take it, is an instinctive act, almost reflex in character. It is certainly a
defense mechanism and is, perhaps, akin to punishment. Bees ferociously attack any foreign
intruder and even destroy it. This may be akin to punishment; it is certainly social defense.
Whether it is retaliation or not is difficult to say. Wherever human beings have charge of
animals there is a 'ruthless insistence upon obedience to a conventional conduct pattern. Any
variation from the prescribed conduct is annoying and irritating and results in savage
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retaliation. In the government of children, failure to adopt the prescribed mode of conduct
annoys and irritates us and often leads to violent attacks for the purpose of inflicting
punishment. Here it has been necessary to pass laws and to organize societies to protect
children from the brutality of their parents and others in the name of punishment. 1

THE HISTORY OF PUNISHMENT BY LEWIS

LYONS
The early history of punishment begins with Gildamesh, the Samarian King of Uruk, who
reigned around 2700 BC. The early Mesopotamian cultures were perhaps the first organized
civilizations with permanent residences. The earliest legal code may have been that of UrNammu, founder of the 3rd dynasty of Ur at about 2050 BC. It is interesting that in these early
documents there was a reference to the power struggle between the temple and the state. In
the Ur-Nammu code there are actually clear statements about if a person does something,
what he will have to pay. Usually it has to do with paying a price in silver Mina. In some later
Samarian records there was actually a death penalty given at a murder trial. In some early
documents The Laws of Eshunna, there were different punishments for two social classes,
the upper class and the lower class. The Laws of Eshunna appeared to cover every aspect of
civil life including marriage, divorce, property, loans, inheritance, breach of contract, disputes
and problems with harvest and cattle. Punishments were forms of monetary compensation.
There were, however, some capital offenses.
The Code of Hammurabi was written around 1750 BC. Hammurabi Kingdom was centered in
Babylon. Hammurabi erected public buildings, supervised irrigation and canal building, tax
collection and created a postal service. Hammurabi unified his empire under a single legal
code. By this code, the abiding principle was Talio which had to do for mutilating or
1ELLSWORTH FARIS. "THE ORIGIN OF PUNISHMENT." INTERNATIONAL JOURNAL OF ETHICS 25
(1914):54-67.

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amputating the part of the body that had committed a crime. There were legal rights and
judicial procedures available to all in the kingdom. Cases were compiled and precedent was
used as an argument. Still there were slaves and prisoners of war who did not have equal
rights. The slaves, however, were paid a salary and could eventually purchase their own
freedom. Under the Code of Hammurabi the death penalty was awarded for a vast array of
crimes such as thievery, selling or receiving stolen goods, kidnapping, assisting fugitive
slaves and for the sale of drink or even keeping a disorderly tavern. The Code of Hammurabi
was a source of two other Middle Eastern legal traditions; the Biblical Law of the Hebrews
and
Sharia,
the
Law
of
Islam. 2
Various kinds of punishments are prescribed for various types of Crimes. Various Punishment
theories are proposed with the various intentions. The variation in the modality of punishment
occur because of the variation of societal reaction to law breaking.
General form of Punishments
The general forms of punishment were:

Flogging

Mutilationii

Brandingiii

Stoning

Pillory

Fine / Penalty

Forfeiture of Property

Security Bond

Banishment

Penal Servitude

Simple Imprisonment

Solitary confinement

Imprisonment for Life

2LEWIS LYONS, THE HISTORY OF PUNISHMENT.GLOBE PEQUOT PRESS, 01-SEP-2003

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Death or Capital Punishment

THE CONCEPT OF PUNISHMENT UNDER

MODERN JURISPRUDENCE (MANU SMIRITI)
CONCEPT OF PUNISHMENT UNDER MODERN JURISPRUDENCE:

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The concept of punishment under modern jurisprudence is usually associated within the law
of crimes. In early English Law there was a clear distinction between criminal and civil
wrongs. The earliest reference to the term crime may be traced to the14th century. Prior to
this it was only a law of torts. It was in the year 1846 the law of doodadswas abolished.
Now of course the law of crimes is well developed and it is an independent branch of law.
However, the term crime has not been satisfactorily defined. And it is admitted on all
hands that it is not possible to discover a legal dentition of crime
but the
characteristics of a crime are not in doubt. They are I ) that it is a harm, brought
about by human conduct, which the sovereign power in the state desires to prevent ( ii )
that among the measures of prevention selected is the threat of punishment and ( iii ) that
legal proceedings of a special kind are employed.
The theories which are usually advanced in justification of punishments are I ) Retributive :
This justifies punishment on the ground that it is a retribution for wrong doing. Here
punishment is viewed more as the satisfaction of the society in the infliction of punishment.
This interest of the society is usually backed up by the state otherwise it is quite likely to face
a public revolt. ( ii ) Deterrent : By this the state aims to protect the society by
inflicting punishment which is meant to act as deterrent on offender in his future
behavior and also on the likeminded member of the society. This theory was
very muchin vogue in the 18th ankle 19th centuries. (iii) Reformative theory: The
advocates of this theory believe inpreventing crime by reforming the criminal. They view
punishment as a reformative measure. Since the l9th century there has been a
considerable shift in the penal policy arid reformative theory is gaining more ground. This,
along with moral considerations, has resulted in the abolition of capital punishmentin some
legal systems and also led to the removal of certain barbarous punishments which were
very much prevalent in the early days.

CONDITION OF THE SYSTEM OF

PUNISHMENT IN INDIA (NOW)
Crime and Punishment are two sides of a coin, absolutely inseparable from each other. A
crime automatically results in punishment, but, not so at least in India.

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Crime has always been committed in the world and, everywhere there are laws to deal with
the criminal, book him and punish him. However, in spite of stringent punishments, crime
continues to flourish everywhere in the world. This is true to every country of the world but,
the Indian scenario is a little different.
In India also there are detailed laws to deal with criminals of all hues and colours, and of
different magnitudes. The laws do exist in law books but, either they are redundant or
irrelevant to the country.
Here, in India we continue to hear of crime and the connected criminals but, we almost never
hear of any punishment to any of these criminals. Why and how is this situation existing in
the country is a topic to debate and ponder upon.
This situation is true to almost all cases except very exceptional cases like the murder of
Gandhi or Indira Gandhi. Only in such rare cases we see the criminals being punished but
what about the umpteen criminals we hear of daily. We hear of the crime, we hear of the
criminal, but we never get to hear about the punishment meted out to him.
This being the ground reality of crime and punishment in India let us try to analyse how it has
come to this pass. A criminal commits a crime, he seems to be confirmed as the criminal yet,
no law of the land can punish him. What is this mystery about the Indian legal system? This
situation has come to being because of many reasons. This is because in the last few decades
the criminals are being left free with impunity, and, this in turn is because the corruption bug
has bitten all.
There is a very deep corruption ingrained in the Indian system of crime and punishment. If
the criminal has access to any highly placed individual, he is sure to be acquitted. If the
criminal has money power, he himself can purchase a lawyer, and, if he has muscle power, he
can get any lawyer or judge killed. With this much back up support of people who matter,
who can ever reach the punishment due to him.
In this strange scenario, with everyone trying to save himself from the ire of the criminal
obviously succumbs to the fancies of the criminal, and he is left unharmed, once again ready
to commit another crime. This allowance to a criminal has encouraged crime to such an
extent that, now, everyone knows who the criminal is but no one can dare to say or do
anything about it. This sort of relaxation given to the criminals has given an impetus to crime
and now it is difficult to redeem the situation.
Besides the obvious corruption in the system there is another factor unique about our Indian
legal system, and that is inordinate delays in the hearings of cases and the final judgements.
When a case takes decades to reach any conclusion, it gives enough time to the criminal to
manipulate, purchase and do whatever else is required to be done to save himself. With these
decades long delays even the public becomes less aggressive against the criminal and the case
becomes lukewarm. This goes to the obvious advantage of the criminal.
Thus, in India, laws are just as good as they are anywhere else in the world but, people
dealing with criminals are not like their counterparts around the world.
The cause for this is not just an occurrence but, it is made to occur. The dismal situation
exists because people involved want it to be so. This in turn is because all the parties involved
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are getting advantage from the delays. Since all are getting their pound of flesh, no one in the
chain is interested in the finalisation of cases.
This unique situation of the Indian legal system gives an unabated boost to crime and
criminals. When it has become clear that, no one is ever punished for any crime, there is
encouragement for more and more people to enter the arena. If we want to have less crime
then, we will, on the one hand have to have speedy judgement, without any favours to people
who matter, or those who occupy high places.
Next what we have to do is to remember that our Constitution gives every citizen equality
before law. This is however only on paper in India. This must become a reality only then, we
will be moving towards justice. In order to reduce crime we must see that punishment is fast
and given justly. This will deter new comers at least from entering into the world of crime

TYPES OF PUNISHMENTS ACCORDING TO IPC

Prescribes five kinds of punishments.
1. Death Penalty
2. Life imprisonment
3. Imprisonment
1. Rigorous
2. Simple
4. Forfeiture of property
5. Fine

Six kinds of punishment were described in the original Indian Penal Code. In the year 1949
the third punishment Penal Servitude was removed. Now there are five kinds of
punishment under I.P.C.
They are described hereunder.
1. Death:
The punishment of death may be imposed on the following offences:
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(a) Waging or attempting to wage war or abetting the waging of war against the Government
of India3
(b) Abetment of mutiny actually committed 4
(c) Giving or fabricating false evidence upon which an innocent person suffers death 5
(d) Murder6
(e) Punishment for murder by a life-convict Sec. 303 [This Section was struck down by the
Supreme Court holding that it was unconstitutional, while disposing the case Mithu v. State
of Punjab7
(f) Attempt to murder by a person under sentence of imprisonment for life
(g) Dacoity with murder
The Courts have a high range of discretionary powers in passing death sentences. The death
punishment is also called Capital Punishment
It is the maximum punishment possible to be imposed on a criminal. This punishment
occupies topmost position among the grades of punishments. This punishment can be
imposed in extreme cases and rarely that too in extremely grave crimes.
The capital punishment can be imposed on a criminal who commits a pre-planned and
premeditated murder in cold blood. The offences with sections in which the death penalty can
be imposed are explained above.
(f) Abetment of suicide of a child, an insane or intoxicated person
2. Imprisonment for Life:
Before 1955, the words transportation for life was used. The Code of Criminal Procedure
Amendment Act, 1955substituted the words Imprisonment for life in place of
transportation for Life. The general public thinks that imprisonment for life means only 14
years imprisonment, and the convict shall be released as soon as the 14 years period is lapsed.
It is wrong Presumption. Actually, the punishment under the Imprisonment for Life means
imprisonment for the whole of the remaining period of the convicted persons natural life.

3Section 121 I.PC.

4Sec. 132 of I.P.C.
5Sec. 194
6Section 302
7AIR 1983 SC 4731
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The life convict is not entitled to automatic release on completion of fourteen years
imprisonment, unless on special occasions, the Government may pass an order considering
the good behaviour and conduct of the convict remitting the balance of imprisonment for life.
3. Penal Servitude:
Servitude means slavery. Penal Servitude means the convict becomes a slave of the
State The British Courts used to impose Penal Servitude as a severe punishment next to
the Death Sentence. Generally, this punishment was imposed on Indians, who revolt against
the then British Rule.These punishments were also called Extermination or
Exterminating Several thousands of freedom fighters were punished under these
punishments before the independence. As soon as India got independence, our Indian
Government abolished Penal Servitude punishment, by the Criminal Justice Act, 19488
4. Imprisonment:
The Fourth kind of punishment is Imprisonment. It is of two descriptions, viz.
(i) Rigorous, i.e., with hard labour; and
(ii) Simple.
(i) Rigorous Imprisonment i.e. with Hard Labour:
There are certain offences defined in the Indian Penal Code, for which rigorous imprisonment
may be imposed by the Courts.
In rigorous imprisonment, the convicted person is put to do hard labour such as digging earth,
cutting stones, agriculture, grinding corn, drawing water, carpentry, etc. The Supreme Court
suggested that the offenders imposed hard labour should be paid minimum wages.
(ii) Simple imprisonment:
This punishment is imposed for the lighter offences. Examples: public servant unlawfully
engaging in trade or unlawfully buying or bidding for property. To obstruct traffic or cause
public nuisance; eve- teasing, drunken brawls, etc.; refusing oath when duly required to take
oath by a public servant, wrongful restraint, defamationetc.

Solitary Confinement:
8Act No. 58 of 1948
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This punishment is also part of the Imprisonment. A harsh and hardened convict may be
confined in a separate cell to correct his conduct. He is put separately without intercourse
with other prisoners. All connections are severed with other world.
The object of this punishment is to reform the hardened and habitual offender and in order to
experience him with loneliness. There are certain restrictions in imposing solitary
confinement. They are:
(a) Solitary confinement should not exceed three months of the whole term of imprisonment.
(B). It cannot be awarded where imprisonment is not part of the substantive sentence.
(c) It cannot be awarded where imprisonment is in lieu of fine.
Enhanced Punishment:
According to this Section, whoever, having been convicted by a Court in India, of an offence
punishable, with imprisonment of either description for a term of three years or upwards,
shall be guilty of any offence punishable under either of those Chapters with like
imprisonment for the like term, shall be subject for every such subsequent offence to
imprisonment for life, or to imprisonment of either description for a term which may extend
to ten years, explains about the offences relating to coins and Government Stamps.
5. Forfeiture of Property:
Forfeiture is the divestiture of specific property without compensation in consequence of
some default or act of forbidden by law. The Courts may order for forfeiture of property of
the accused in certain Occasions. In cases of smugglers, goondas, anti-national personalities,
etc., the Government or the Courts are empowered to forfeiture of property of such anti-social
elements.
6. Fine:
The Courts may impose fine along with or without imprisonment. The Indian Penal Code
mentions the punishment of fine for several offences, generally with or without
imprisonment.

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CONCLUSION
These topics introducing punishment have been discussed here, and many philosophers
continue to discuss them and offer various answers to the questions that are raised related to
the origin& the system of punishment, &how it has evolved. However, the topics discussed
here are not the only ones, There are many, including the role of the imprisonment of
offenders, and the cultural and historical context of punishment.

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REFERENCES

Fyodor Dostoevsky, Crime and Punishment (English), Random House Publishing

Group, 1996 October.

Peters, Richard Stanley (1966). Ethics and Education. pp. 267268.

JSTOR 3120772.

Doing Justice - The Choice of Punishments, A VONHIRSCH, 1976,

p.220

Kinds of
Punishments,Http://Www.Lawnotes.In/Kinds_Of_Punishments

What Are The Different Kinds Of Punishment PracticedIn Indiaexplained,

Http://Www.Shareyouressays.Com/115857/What-Are-The-Different-Kinds-OfPunishment-Practiced-In-Indiaexplained

Lewis Lyons, The History Of Punishment,Globe Pequot Press,01-Sep-2003.

Ellsworth Faris,"The Origin Of Punishment.", International Journal Of Ethics,25

(1914):54-67.

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Bedau, Hugo Adam And Kelly, Erin, "Punishment", The Stanford Encyclopedia Of
Philosophy (Spring 2010 Edition), Edward N. Zalta (Ed.), URL =
<Http://Plato.Stanford.Edu/Archives/Spr2010/Entries/Punishment/>.
Http://Www.Tentmaker.Org/Books/Originandhistory.Html
Bedau, Hugo Adam And Kelly, Erin, "Punishment", The Stanford Encyclopedia Of
Philosophy (Spring 2010 Edition), Edward N. Zalta (Ed.), URL =
Http://Plato.Stanford.Edu/Archives/Spr2010/Entries/Punishment/

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i
ii
iii