Theories and Kinds of Punishment; Compensation to Victims of Crime

Indian judicial approach: courts apply a blend (Mohd. Giasuddin v. State of A.P., 1977; Justice Krishna Iyer stressed the reformative approach and the "hate the sin, not the sinner" principle); Dhananjoy Chatterjee v. State of W.B. (1994) (deterrence and the society's cry for justice justified death); Bachan Singh v. State of Punjab (1980) (reformative and retributive aims are balanced; death only in the rarest of rare cases); Soman v. State of Kerala (2013) (sentencing principles: proportionality; the court must consider aggravating and mitigating factors).

Committee reports: the Malimath Committee (2003) recommended a sentencing guideline; Madhava Menon Committee (2007) proposed a National Policy on Criminal Justice. India has no statutory sentencing guideline; discretion is judicial.

Other provisions of Chapter II (ss.4-13): s.5 commutation of sentences (the appropriate Government may commute death to life imprisonment, etc., without the offender's consent); s.6 fractions of terms (life imprisonment is reckoned as twenty years for calculating fractions, unless otherwise provided); s.7 the sentence may be wholly or partly rigorous or simple; s.8 amount of fine and default imprisonment; s.9 limit of punishment for an offence made up of several offences; s.10 punishment where it is doubtful which of several offences was committed; s.11 solitary confinement; s.12 limit of solitary confinement; s.13 enhanced punishment after previous conviction.

Life imprisonment: means imprisonment for the whole of the remaining natural life unless remitted or commuted by the appropriate Government (Gopal Vinayak Godse v. State of Maharashtra, 1961; the twenty-year reckoning in s.6 is only for calculation of fractions). Maru Ram v. Union of India (1981) upheld CrPC s.433A (a life convict must serve fourteen years before remission; the BNSS has an equivalent provision); Swamy Shraddananda (2) v. State of Karnataka (2008) (the court may impose a fixed-term life sentence (no remission) as an alternative to death); Union of India v. V. Sriharan @ Murugan (2016) (Constitution Bench: the Constitutional Courts may impose a fixed term of life imprisonment beyond fourteen years, even for the whole natural life; but no Government remission in that case). The BNS expressly uses "imprisonment for life, which shall mean the remainder of that person's natural life" for certain aggravated sexual offences and for murder by a life convict.

Rigorous imprisonment includes hard labour (grinding corn, digging, drawing water, wood-cutting); simple imprisonment has no hard labour. Prisoners' rights: Sunil Batra v. Delhi Administration (1978, 1980) (solitary confinement and bar fetters in jail violate Article 21 unless justified; prisoners retain fundamental rights); Charles Sobraj v. Superintendent, Central Jail, Tihar (1978); Prem Shankar Shukla v. Delhi Administration (1980) (handcuffing is inhuman unless justified); Hussainara Khatoon v. State of Bihar (1979) (speedy trial and legal aid for undertrials); Sheela Barse v. State of Maharashtra (1983) (women and child prisoners).

Solitary confinement (s.11-12; IPC 73-74): not more than three months in the whole; not more than fourteen days at a time, with intervals of equal length.

Fine: if no sum is expressed, the fine is unlimited but not excessive (s.8); default imprisonment must not exceed one-fourth of the maximum imprisonment for the offence where the offence is punishable with both; fine is realisable within six years, and the offender's death does not discharge his property from liability.

Community service (s.4(f)): defined in BNS s.2 as work the court orders as punishment that benefits the community, for which the convict is not entitled to remuneration. Offences with community service (six): public servant unlawfully engaging in trade (s.202), non-attendance in obedience to an order from a public servant (s.209), attempt to commit suicide to compel or restrain a public servant (s.226), theft of property valued under ₹5,000 by a first-time convict who returns the property (s.303(2)), misconduct in public by a drunken person (s.355), and defamation (s.356(2)).

Mandatory minimum punishments: introduced for several offences (e.g., rape, dowry death, organised crime). Forfeiture and attachment of proceeds of crime: BNSS s.107 (new, attachment, forfeiture or restoration of property).

Offences punishable with death in the BNS include murder (s.103), murder by a life convict (s.104), mob lynching (s.103(2)), waging war (s.147), abetment of mutiny and certain military offences, rape of a girl under 12 (s.65(2)), rape causing death or persistent vegetative state (s.66), gang rape of a woman under 18 (s.70(2)), repeat rape offenders (s.71), kidnapping for ransom (s.140(2): death or life), dacoity with murder (s.310(3)), terrorist act causing death (s.113), organised crime causing death (s.111), and false evidence leading to the conviction of an innocent person for a capital offence. Special laws include POCSO (aggravated penetrative sexual assault), NDPS s.31A and UAPA s.16.

Landmark case law:

• Jagmohan Singh v. State of U.P. (1973): upheld the death penalty; sentencing discretion is guided by the procedure of a trial.

• Rajendra Prasad v. State of U.P. (1979): Justice Krishna Iyer limited death to cases of extraordinary nature (extreme social danger); overruled in Bachan Singh.

• Bachan Singh v. State of Punjab (1980): Constitution Bench (4:1; Justice Bhagwati dissenting) upheld the constitutional validity of the death penalty (Article 21 and s.302 IPC); death can be imposed only in the "rarest of rare" cases when the alternative of life imprisonment is unquestionably foreclosed; the court must weigh aggravating and mitigating circumstances; life imprisonment is the rule and death the exception; CrPC s.354(3) requires special reasons for death.

• Machhi Singh v. State of Punjab (1983): five categories to apply the rarest-of-rare test: manner of commission, motive, anti-social or socially abhorrent nature, magnitude, personality of the victim; and a balance sheet of aggravating and mitigating factors.

• Mithu v. State of Punjab (1983): mandatory death under IPC s.303 is unconstitutional.

• Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009): crime test and criminal test; the court must look at the offender as well as the offence; not mechanical application of rarest-of-rare.

• Deena v. Union of India (1983): hanging is not a cruel, inhuman or degrading method (Article 21 upheld); T.V. Vatheeswaran v. State of T.N. (1983) and Triveniben v. State of Gujarat (1989): inordinate delay in execution; delay alone does not automatically entitle commutation unless unexplained and excessive.

• Shatrughan Chauhan v. Union of India (2014): undue and inordinate delay in deciding mercy petitions is a ground for commutation; guidelines for the protection of death row convicts (e.g., mental illness, solitary confinement barred, legal aid). Mohd. Arif @ Ashfaq v. Registrar, Supreme Court (2014): review petitions in death sentences must be heard in open court by a bench of at least three judges. Shabnam v. Union of India (2015): no execution without sufficient notice of 14 days after the mercy decision to allow remedies.

• Mukesh v. State (NCT of Delhi) (2017): Nirbhaya; death confirmed. Yakub Memon v. State of Maharashtra (2015): curative petition heard at night before execution.

• Manoj v. State of M.P. (2022): the court must examine mitigating circumstances (psychological evaluation, jail conduct, probation report) before imposing death; a Constitution Bench reference was made in 2022 to frame guidelines on mitigating factors.

Procedure: pre-sentence hearing (CrPC s.235(2); BNSS s.392(2)); confirmation of death sentence by the High Court (the BNSS chapter on confirmation, corresponding to CrPC ss.366-371); appeal to the Supreme Court (Article 134); mercy petition to the Governor (Article 161) and President (Article 72; Epuru Sudhakar v. Government of A.P., 2006: judicial review of mercy decisions is available on limited grounds).

Abolition debate: Law Commission 262nd Report (2015) recommended abolition for all crimes except terrorism-related offences; Mithu and Bachan Singh remain the core precedents.

Probation of Offenders Act, 1958: courts may release first-time offenders on probation of good conduct (s.3: release after admonition for certain property offences and offences punishable with up to two years; s.4: release on probation of good conduct for offences not punishable with death or life; s.6: restrictions on imprisonment of offenders under 21). Cases: Ratan Lal v. State of Punjab (1964) (probation to a young offender; the Act is beneficial and retrospective); Jugal Kishore Prasad v. State of Bihar (1972); Chhanni v. State of U.P. (2006) (probation to older offenders; reasons must be recorded if not applied).

Sentencing principles: proportionality, individualisation, consideration of both the crime and the criminal. Aggravating factors: premeditation, cruelty, vulnerable victim, abuse of position of trust, repeat offence. Mitigating factors: young age, no criminal history, remorse, provocation, mental condition, probability of reform.

Plea bargaining (BNSS Chapter XXIII; CrPC Chapter XXIA introduced in 2005): available for offences with punishment up to seven years; not for offences against women or children below 14, socio-economic offences, or offences affecting the socio-economic condition of the country; the court reduces the sentence (up to one-fourth of the minimum or one-half in some cases, depending on the stage).

Compounding of offences (BNSS s.359; CrPC s.320): with or without court permission for the listed offences; non-compoundable serious offences.

Juvenile justice: Juvenile Justice (Care and Protection of Children) Act, 2015; no death or life imprisonment for children in conflict with law; the maximum stay in a special home is three years; heinous offences by 16-18 year-olds may be treated as adults.

Parole and furlough: parole (temporary release for a specific purpose; not a right), furlough (a reward for good conduct); State prison rules; Maru Ram and Sunil Batra govern remission.

Victimology: the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985); Indian reforms followed the Malimath Committee (2003) and the Law Commission 154th Report (1996).

Statutory provisions (BNSS; old CrPC in brackets):

• s.395 (CrPC 357): order to pay compensation out of the fine or in addition to the fine; compensation to the victim for the loss or injury and costs; courts may order compensation even when fine is not part of the sentence (357(3)). Hari Singh v. Sukhbir Singh (1988) (courts should liberally use the power); Ankush Shivaji Gaikwad v. State of Maharashtra (2013) (the court has a duty to consider compensation in every case; the power is mandatory to consider); Suresh v. State of Haryana (2015) (the power is not ancillary to a sentence).

• s.396 (CrPC 357A): Victim Compensation Scheme by every State, in coordination with the Central Government; the District Legal Services Authority (DLSA) or State Legal Services Authority decides the quantum where the court recommends compensation, even when the offender is not traced or identified or the trial ends in acquittal or discharge.

• ss.397 (CrPC 357B, 357C): compensation for acid attack and sexual offences is in addition to fines (e.g., under s.124 (acid), s.65 (rape under 16), s.70 (gang rape)); free medical treatment (first-aid, diagnosis, hospitalisation and psychological counselling) in all hospitals, public or private, for victims of acid attack and rape.

• Right of appeal by the victim (proviso to CrPC s.372; BNSS s.413): Satya Pal Singh v. State of M.P. (2015).

• Victim participation and victim impact statements in sentencing and victim's right to be heard (BNSS ss.360, 230 etc.).

Constitutional compensation (public law remedy) under Articles 32 and 226: Rudul Sah v. State of Bihar (1983) (compensation for illegal detention after acquittal); Bhim Singh v. State of J&K (1985); Nilabati Behera v. State of Orissa (1993) (custodial death; compensation is public law and separate from private-law tort remedies); D.K. Basu v. State of W.B. (1997) (arrest and detention guidelines); Delhi Domestic Working Women's Forum v. Union of India (1995) (Criminal Injuries Compensation Board for rape victims; legal representation); Bodhisattwa Gautam v. Subhra Chakraborty (1996) (interim compensation to rape victims); Chairman, Railway Board v. Chandrima Das (2000) (compensation to a foreign national raped by railway employees); Laxmi v. Union of India (2014) and Parivartan Kendra v. Union of India (2015) (acid attack: minimum ₹3 lakh; free treatment); Nipun Saxena v. Union of India (2018) (a Model Victim Compensation Scheme for sexual offences and acid attack; NALSA's 2018 scheme for women victims of sexual assault).

Special statutes with compensation: Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989; Protection of Women from Domestic Violence Act, 2005 (monetary relief); Motor Vehicles Act, 1988 (compensation, no-fault liability); POCSO Rules, 2020 (interim compensation).