Punishment in Criminal Law – Theories | Objectives | Evolution

Punishment in criminal law refers to the legal consequence imposed by a competent court on an individual who has been found guilty of committing a crime. It is a sanctioned penalty prescribed by law and enforced by the State, intended to achieve justice by deterring unlawful behavior, reforming the offender, protecting society, and expressing societal condemnation of the wrongful act. Punishment may take various forms—such as imprisonment, fines, community service, or even capital punishment—depending on the nature and gravity of the offence.

Table of Contents

1. Meaning of Punishments
2. Object of Punishment
3. Sentencing
4. Just Desserts
5. Changes in Punishments Over the Years

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1. Meaning of Punishments

Punishment is a means to secure compliance with the established laws of any country. Punishments are imposed with an objective of prevention of offences and protection of the society. Modern penology provides for punishment of criminals by affixing their criminal liability and imposition of sentences on the basis of gravity of offences. Thus offences which are of severe nature attract higher punishments than offences of lighter nature.

Salmond defined ‘crime’ as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual. Long-long ago, Kautilya said: “it is the power of punishment alone which when exercised impartially in proportion to guilt and irrespective of whether the person punished is the king’s son or the enemy, that protects this world and the next”. Punishment can be said to be the sanction imposed on the offender for the infringement of the law. When a person is tried for an offence and found guilty, it is the duty of the court to impose on him such sentence, as is prescribed therefor. The power to pass a sentence is derived from the law which enacts that on conviction a sentence shall be imposed on the accused, and that is a power which can and ought to be exercised by all the courts which, having jurisdiction to decide whether the accused is guilty or not, find that he is. The award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor.¹

In the decision in State of Punjab v. Bawa Singh,² this Court held that it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The sentencing courts are expected to consider all the relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The court must not only keep in view the rights of the victim but also the society at large while considering the imposition of appropriate punishment. Meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.³

Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which both the criminal and the victim belong.⁴

2. Object of Punishment

The object of punishment has been succinctly stated in Halsbury’s Laws of England⁵ thus:

“The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided.”

3. Sentencing

Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait-jacket formula for sentencing an accused on proof of crime. The Courts have evolved certain principles: twin objective of sentencing policy is deterrence and correction. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the Court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. The principle of proportionality in sentencing a crime doer is well entrenched in crime jurisprudence. As a matter of law, proportion between crime and punishment bears most relevant influence in determination of sentencing the crime doer. The Court has to take into consideration all aspects including social interest and consciousness of the society for award of appropriate sentence.⁶

Generally, the policy which the Court adopts while awarding sentence is that the punishment must be appropriate and proportional to the gravity of the offence committed. Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crime are certain factors to be considered while imposing the sentence. The imposition of sentence without considering its effect on the social order in many cases is in reality a futile exercise.⁷

Sentencing is a delicate task requiring an inter-disciplinary approach and calls for skills and talents. A proper sentence is the amalgam of many factors, such as the nature of offence, circumstances—extenuating or aggravating—of the offence, prior criminal record of the offender, age and background of the offender with reference to education, home life, sobriety, social adjustment, emotional and mental condition, the prospects for his rehabilitation, etc. All these and similar other considerations can, hopefully and legitimately, tilt the scales on the propriety of sentence and, therefore, they have to be taken into account by the court at the time of imposition of sentence on the offender.⁸ In operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.⁹ In an offence inviting extreme penalty of imprisonment for life and death, it is expected that every point urged would be dealt with by razor-sharp precision and sound logical reasoning, and not on the ipse dixit of a judge.¹⁰

The court cannot ignore the social impact of crimes, usually three approaches are made while awarding sentence—

(i) punitive,

(ii) therapeutic,

(iii) preventive.

The therapeutic approach seems to be more effective and acceptable. That satisfies the requirement of law and protects society, but at the same time reforms the accused to a great extent. But of course, criminals should be punished, therefore complete therapeutic approach may not be possible.¹¹

4. Just Desserts

This refers to the idea of getting what one deserves, especially in terms of punishment. This refers to a fair and just sentence, proportionate to the gravity of crime committed. To say that someone got their just deserts means that they got what they deserved. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. Courts should be mindful of the central role that  proportionality plays in sentencing of offenders. The clamour or claim for comeuppance viz., deserved punishment proportionate to the gravity of the offence is a continuous and continuing demand based on civic sense and unfailing in categories of serious offences where more than individual interest is also involved. In such cases, the rule of proportionality in providing punishment should not fail as otherwise it will impact the society.

One of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which commensurate with gravity, nature of crime and the manner in which the offence is committed. One should keep in mind the social interest and conscience of the society while considering the determinative factor of sentence with gravity of crime. The punishment should not be so lenient that it shocks the conscience of society. It is, therefore, solemn duty of the court to strike a proper balance while awarding the sentence as awarding lesser sentence encourages any criminal and, as a result of the same, society suffers.¹²  it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict.”¹³

Leading Case Laws Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat,14, the court observed, “The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) law by imposing appropriate sentence. It is expected that the courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.” In the case of Shailesh Jasvantbhai v. State of Gujarat,15 the Apex Court opined that,” The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is  a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges.

The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of ‘order’ should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: ‘State of criminal law continues to be–as it should be–a decisive reflection of social consciousness of society.’ Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.”

Sections 4 to 13 contained in chapter II of the BNS deal with punishments. It explains the nature of different kinds of punishments awardable under various provisions of the BNS, how punishments are enhanced or commuted and how fractions of terms of punishment are calculated.

The objective of criminal justice system is to protect the people from wrongful acts of criminals and punish the wrong doers for their actions which disturb the peace and security of social community. Different theorists, philosophers, criminologists, sociologists, judges, penologists and psychologists have laid down different objectives of punishment. On the one hand, there is the old Benthamite confidence of fear in the minds of the criminals and potential criminals of the penalties threatened by the law as a powerful deterrent, that has waned with the growing realisation that the part played by calculation of any sort in anti-social behaviour has been exaggerated. On the other hand, a cloud of doubt has settled over the keystone of retributive theory.¹⁶ The question that agitates the mind is: what is the immediate aim of the criminal law? Is it to punish with a view to deter like-minded persons, or deter the wrong-doer from repeating his conduct, or reform him by suffering the pain of punishment? Lord Denning in his evidence to the Royal Commission on Capital Punishment gave the most charitable explanation that punishment is justified as an emphatic denunciation by the community of a crime’. This cannot be accepted as a self-evident proposition because the aim of criminal legislation is not only to denounce certain types of conduct as something not to be practised but it has other aims as well—of deterrence, retribution and substantial reformation. The civilised society today has more or less eschewed retribution as an aim of punishment. Over a period, it has been realised that retribution cannot solve the urgent problem of reduction of crime. The older conception of punishment is now sharply distinguished. The society has moved far away from the view of Dostoevsky as propounded in his novel ‘Crime and Punishment’. One character in that novel through whose mouth the author reveals his thinking manifestly shows that at the time when that novel was written, the author and like-minded people “passionately believed that society was morally justified in punishing people simply because they had done wrong. And psychologically, the criminal needed his punishment to heal the laceration of the bond that joined him to his society.”¹⁷ Though there are several theories prevalent about punishment, retributive, deterrent, reformative, denunciatory, etc., in actual practise no single theory holds the field. Neither the Nyaya Sanhita nor any of the other penal laws in force in the country owe exclusive allegiance to any single theory. The imposition of death penalty for murder is partly retributive, partly deterrent and partly denunciatory. It cannot be emphasised too often that crime and punishment are functionally related to the society in which they occur. The five most significant theories of punishments are as follows:

1. Deterrent Theory
2. Retributive Theory
3. Preventive Theory
4. Reformative Theory
5. Expiatory Theory

4.1 Deterrent Theory

Meaning: ‘Deter’ means to abstain from action.

Rationale behind the theory: Creating fear in minds of criminals to curb criminal behaviour.

Objective: Reduction in crimes so that peace may prevail in society.

Punishments favoured: This theory favours grant of severe and exemplary punishment such as hanging in public, rigorous imprisonment, solitary confinement etc. to criminals.

Explanation: The deterrent theory suggests that the main objective of punishment is deterrence which can be attained only by openly and severely punishing the criminals. There should be no lenient treatment of antisocial elements and even minor deviations from the prescribed social behaviour should be taken seriously. Granting of hard punishments for even minor offences will serve as a deterrent tool to prevent people from committing crimes in future and will set an example for other prospective criminals too. This will eventually curb criminal behaviour by creating a fear in the minds of people with criminal tendencies and crime rates will come down leading to peace and security.

Critical Appraisal: A deterrent system of punishment cannot control crimes committed on sudden impulses or under grave and sudden provocation. It may sometimes lead to unduly harsh punishments for people suffering from psychological problems e.g. kleptomaniacs (people with an irresistible urge to steal). Moreover severe punishments may make persons hardened criminals with no regard for the law.

To quote Justice Krishna Iyer,

“While, deterrence through threat of death may still be a promising strategy in some frightful areas of murderous crime, to espouse a monolithic theory of its deterrent efficacy is unscientific and so emphasis needs to shift, to accept composite factors of penal strategy and not to put all the punitive eggs in the ‘hanging’ basket but hopefully to try the humane mix. A better world is one without legal knifing of life, given propitious social changes. To sublimate savagery in individual or society is a long experiment in spiritual chemistry where moral values, socioeconomic conditions and legislative judgment have a role. Judicial activism can only be a signpost, a weather vane, no more. The penal direction in this jurisprudential journey points to life prison normally, as against guillotine, gas chamber, electric chair, firing squad or hangmen’s rope”.¹⁸

A disproportionately heavy sentence unrelated to the gravity of the offence proved is likely to be interfered with as violative of Article 14 of the Constitution by invoking the principle that not only it is arbitrary but it denies equal protection of laws. Let it be remembered that convicts and prisoners are not wholly denuded of their fundamental rights. Prisoners are entitled to all constitutional rights unless their liberty has been constitutionally curtailed. Any theory of punishment must fit in with the liberatarian principle of the Constitution. Deterrence, both specific and general, rehabilitation, reformation and re-absorption in the society are vital considerations. Compassion, wherever possible, is the art of correctional confinement.¹⁹  The sentence to be appropriate should be neither too harsh nor too lenient.²⁰

4.2 Retributive Theory

Meaning: Retribute means to give in return. Retribution means requital or to recompense.

Rationale behind the theory: An eye for an eye, a tooth for a tooth.

Objective: The retributive theory has twin objectives

(i) The criminal should be paid back ion the same coin

(ii) The victim’s thirst for revenge should be quenched

Punishments favoured: Stoning, cutting of limbs, gauging out eyes and deprivation of property.

Explanation: According to this theory the main objective of punishment is retribution i.e. revenge. The accused must be subjected to the same treatment that he meted out to the victim so that he suffers in the same manner and feels the same pain. By suffering the same quality and quantity of injury as the victim, he would not think of repeating any crime for fear of retribution. Further the victim and his family would also feel vindicated and tensions and feelings of personal revenge will abate in the society. This will have a deep psychological impact on the criminal who would shudder at the thought of undergoing such punishment again and thus refrain from criminal behaviour. This theory was practiced widely in ancient times but with the growth of welfare state the concept of reformation has gained precedence over retribution and it is now practiced only in a few Islamic nations.

Critical appraisal: Majority of jurists, criminologists, penologists and sociologists have criticized this theory as being ancient, brutal and barbaric. This theory has been condemned by reformists who believe that an eye for an eye will make the whole world blind. It is impossible to calculate with mathematical precision the harm suffered by any individual and then proportionately quantify the measure of punishment to be awarded to be the culprit. Moreover this theory fails to account for social or economic crimes.

4.3 Preventive Theory

Meaning: prevention means to stop, prevent or prohibit from happening.

Rationale behind the theory: Prevention is better than cure.

Objective: Prevent crimes in society by segregating antisocial elements from law abiding citizens.

Punishments favoured: Preventive detention, externment and banishment of criminals as well as prospective offenders.

Explanation: The idea behind this theory is to keep the offender away from society According to this theory all criminals should be separated from the mainstream society and they should all be confined in prisons or banished from the civilised communities. Believing that prevention is better than cure, this theory stresses on taking precautionary steps to protect society from criminal behaviour. Crimes can be prevented by not giving any opportunity to criminals to engage in criminal behaviour. For this all persons with criminal histories and criminal tendencies should be put behind the bars.

Critical appraisal: It is impossible to correctly identify all prospective criminals. More over keeping petty offenders with hardened criminals will have adverse effect on them. This theory has been criticised as it would be in human and violative of a person’s human rights to punish him for a crime not committed by him, on the basis of suspicion alone.

4.4 Reformative Theory

Meaning: To reform, change for better.

Rationale behind the theory: Hate the sin, not the sinner.

Objective: Prevent recurrence of criminal behaviour by reforming the criminal.

Punishments favoured: Probation, parole, open prisons and rehabilitation of convicts are some of the treatments prescribed by this theory.

Explanation: According to this theory no one is born a criminal. Crime is a disease caused by a variety of socio-economic factors. In the case of Sunil Batra v. Delhi Administration²¹ the Supreme Court said that, “the objective of punishment is to correct the wrongdoer and not wrecking vengeance on him.” In contemporary times, punishment cannot be justified as a tool for deterrence, prevention or retribution. Different modes of punishment should be devised to reform the criminals by a positive treatment into law-abiding citizens. This requires treating the criminals as patients deserving of treatment. They should be given opportunities of education and vocational training needs to be imparted to them within the prisons. Keeping the tame convicts in open prisons makes their social re-integration smoother and also provides them opportunity to earn their livelihood. Providing financial assistance to convicts after release will prevent their return to the dark alleys of crimes. Banks should be encouraged to give loans to such people to set up small enterprises which will help them earn respectable livelihood. Care should also be taken to remove the stigma from their lives so that they do not feel socially ostracized and revert back to crime.

Guilt once established, the punitive dilemma begins. The choice between death penalty and life term has to be made in a situation which is not altogether satisfactory. Modern penology regards crime and criminal as equally material when the right sentence has to be picked out, although in our processual system there is neither comprehensive provision nor adequate machinery for collection and presentation of the social and personal data of the culprit to the extent required in the verdict on sentence.²²

While determining the sentence, a Judge has to weigh several circumstances; was the offence primarily directed against person or property? What was the motive for the offence” Political, economic, sexual? Was it vengeance? Was it provoked? Was it sudden or was it premeditated? Will a sentence of imprisonment have a wholesome effect or a deleterious effect? Is the offender a person perpetually and constitutionally at war with society, or is he a person patently amenable to reformation? Will a sentence of imprisonment deter him and disincline him from crime or will it make him a hardened criminal. Once it had been diagnosed as a disease, the whole approach towards the criminal underwent a sea change and radical approach, analogous to treatment of disease emerged. The emphasis has moved from retribution to cure and reform and to reclaim the ailing member of society into the society itself. In any scientific system which turns the focus, at the sentencing stage, not only on the crime but also the criminal, and seeks to personalise the punishment so that the reformatory component is as, much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined. ²³

The question of adequate and appropriate sentence is always a difficult and complex question. A number of socially relevant competing claims have to be delicately adjusted to arrive at a just sentence. Each section prescribes the maximum sentence that can be imposed leaving a wide margin of discretion to the trial judge. On the one hand, the society which has been wronged by the criminal conduct must be saved from repetition of the crime. The criminal must be made to realise that a crime does not pay.

“The sentence should bring home to the guilty party the consciousness that the offence committed by him was against his own interest as also against the interest of the society of which he happens to be a member.”²⁴

The modern approach to penology is that the sentence must bear a humanitarian approach. It is true that a sentence generally poses a complex problem which requires a working compromise between competing views based on reformative, deterrent and retributive theories of punishment.

Though a large number of factors fall for consideration in determining the appropriate sentence, the broad object of punishment of an accused found guilty in progressive civilised is to impress upon the guilty party that the commission of crimes does not pay and that it is both against his individual interest and also against the larger interest of the society to which he belongs.²⁵ Social scientists and criminologists assert that crime is a pathological aberration and therefore, the criminal can ordinarily be redeemed and the State has to rehabilitate him rather than avenge the crime. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by re-culturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence, a therapeutic, rather than an in terrorem outlook, should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. “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.”²⁶ On the other hand, too light a sentence bearing no proportion to the gravity of the offence charged, can bring the administration of criminal justice to ridicule. Soft sentencing justice is gross injustice where many innocents are the potential victims.²⁷ “Offenders who are menace to the civilised society should be mercilessly and inexorably punished in the severest terms.”²⁸

Critical appraisal: This theory is criticised as being too soft on the offenders, with utter disregard for the pan and sufferings undergone by the victims and their family members. It is difficult to reform hardened criminals. Habitual offenders are hard to reform and lenient punishments will further remove the fear of punishment from their minds.

4.5 Expiatory Theory

Meaning: Expiation means to atone for one’s sins. Make amends and repent for past behaviour.

Rationale behind the theory: Every person deserves a second chance.

Objective: Punishment should be used as a tool to cleanse the person from within.

Punishments favoured: Compensation for the victim and his family, community service, fasting, praying, feeding the hungry, serving the sick, helping the infirm etc.

Explanation: The exponents of this theory believe that forgiveness is a virtue and if a criminal repents or expiates, the victim needs to show his magnanimity and forgive him. Every accused is indebted to the victim and should be allowed to compensate for his misdeeds and make up for the sufferings undergone by the victim and his family by compensating them in monetary terms and offering services to them. Every offender should be given an opportunity to cleanse his soul so that he may not have to suffer for his wrongs in the after world. If a person voluntarily and genuinely repents for his misdemeanors then he will never commit a crime in future. Forgiveness will also prevent the cascading effect of criminal behaviour as it subsides the feeling of personal revenge.

Critical appraisal: Expiation cannot be a punishment for serious offences such as murders and rapes. If compensation was allowed as a substitute for imprisonment, rich people would be able to easily get away with criminal behaviour. It would also be difficult to make out the difference between those who genuinely repent and those who use this as a ploy to escape punishment.

All the above theories explain the objective of punishment. But none of these theories can be accepted in totality as they all swing to one extreme or the other. There has to be a balance between the various objectives of punishment and an ideal system of punishment would be a blend of all these theories. The Indian Penal Code is a combination or compromise between the underlying principles of all these theories.

5. Changes in Punishments Over the Years

From 1860 to 2023 the Indian Penal Code has been amended several times in the course of its 163 years and many provisions have been added and deleted from the same. Punishments such as penal servitude (Repealed by Criminal Justice Act, 1948) and Transportation for life (Repealed by Criminal Laws (Amendment) Act, 26 of 1955) were effaced from our statutes. Whipping was also abolished as a punishment in the year 1955. The punishments prescribed under our laws had become outdated and there was a need to introduce newer forms of punishment bearing in mind the object of punishment being punitive as well as reformative. “The punitive strategy of our penal code did not sufficiently reflect the modern trends in correctional treatment and personalised sentencing. When accused persons are of tender age then even in a murder case it is not desirable to send them beyond the high prison walls and forget all about their correction and eventual reformation”.²⁹

There was a need to individualise punishments keeping in mind the peculiar background and circumstances of each criminal that prompt him to commit crimes. The social, economic, educational and psychological problems of every individual should be considered and appropriate punishments should be awarded to the accused. It is the duty of judges to consider the totality of factors bearing on the offence and the offender and fix a punishment which will effectively promote the punitive objective of the law-deterrence and rehabilitation. In Inder Singh v. State³⁰, the Supreme Court directed the State Government to ensure that young accused are not given any degrading work and to be given the benefit of liberal parole every year if their behaviour shows responsibility and trustworthiness. The court also directed the Sessions Judge to make jail visits to ensure compliance with these directions.

In the case of Ashok Kumar v. State (Delhi Administration)³¹, the accused in 1971 while he was a 19 years old college student, tried his hand at stealing a scooter. He was arrested but bailed out and while on bail was accused of committing a car theft. Both these cases were tried and he was found guilty. Allowing his appeals on the question of sentence the court observed “The long protracted litigation from 1971 onwards is some deterrent for a young man in his 20s. The youthful age of the offender is a factor which deserves consideration. A long period of incarceration may brutalise a boy and blunt his finer sensibilities so that the incarceration may perhaps be more criminal than the one at the point of entry. The offender having served a term of nearly six months must have realised that the game of crime does not pay”.

Over the years, Community service came to be increasingly recognised as an alternative to imprisonment in petty offences. Clause 27 of the IPC (Amendment) Bill, 1978, had suggested the insertion of a new section 74A exclusively to deal with punishment of community service. It specified that convict will have to perform the service without any remuneration. The All India Committee on Jail reforms also gave suggestions to improve conditions inside the prisons, and also about finding alternatives to incarceration.

There are certain other legislations in our Country which provide for alternative punishments as follows:

• The Probation of Offender’s Act, 1958 provides for release on probation, release after due admonition and release under the supervision of a probation officer.
• Section 395 BNSS empowers the court to award compensation to the victims of crime out of the fine imposed on the accused person.
• Sometimes authorities pass externment orders against criminals in their jurisdiction, in view of their continuous involvement in illegal activities and likelihood of creating mischief. Externment or banishment means sending a person out of a place for some specified duration to check chances of his involvement in illegal activities during such period. During such period his civil rights are not suspended and he has freedom to move around except in the area from where he has been banished. Externment is recognised as a means of crime prevention under Police Laws of Delhi, Bombay, Kerala and few other states. For example Delhi Police had served an externment order on Baba Ramdev for staging a hunger strike against corruption instead of a yoga camp for which he had taken prior permission.

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1. Jayaram Vithoba AIR 1956 SC 146, 148-49: 1956 Cri LJ 318 (SC); Lakshmi Devi Sugar Mills AIR 1957 SC 82: 1956 SCR 916; Thomas Dana AIR 1959 SC 375: 1959 Cri LJ 392 (SC): 1959 Supp (1) SCR 274; State v Jugmander Lal AIR 1966 SC 940: 1966 Cri LJ 707 (SC); Sube Singh AIR 1988 SC 2235: 1989 Cri LJ 297 (SC): 1989 SCC (Cri) 101: (1989) 1 SCC 235: (1988) 3 JT 729: (1988) 3 Crimes 500 (SC).
2. 2015 AIR SCW 922, 2015 (3) SCC 441, AIR 2015 SC (CRI) 539
3. Baba Natarajan Prasad v. M. Revathi 2024 INSC 523, para 2
4. Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat (2009) 7 SCC 254 at para 100
5. Halsbury’s Laws of England; (4th edn.), Vol. 11, p. 288; para 482. See also Vol. 11(2): p. 995; para 1188; American Jurisprudence (2nd Edn.), Vol. 21, p. 542; para 576. See also State v. Hon’ble High Court of Gujarat 1998 Cri LJ 4561 (SC): AIR 1998 SC 3164: (1998) 4 Crimes 12 (SC): (1998) 6 JT 530: (1998) 7 Supreme 511.
6. Alister Anthony Pareira v. State of Maharashtra AIR 2012 SC 3802.
7. State v. Sanjeev Nanda 2012 Cri LJ 4174 (SC): AIR 2012 SC 3104.
8. Dagdu AIR 1977 SC 1579: 1977 Cri LJ 1206 (SC): (1977) 3 SCC 68: 1977 SCC (Cri) 421: (1977) 3 SCR 636; Jagmohan Singh v. State of UP AIR 1973 SC 947: (1973) 1 SCC 20: (1973) 2 SCR 541: 1973 Cri LJ 370 (SC): 1973 SCC (Cri) 169; Ram Narain AIR 1973 SC 2200: 1973 Cri LJ 1187 (SC): (1993) 2 SCC 86: 1973 SCC (Cri) 752: (1973) 3 SCR 911; Modi Ram AIR 1972 SC 2438: (1972) 2 SCC 630: 1972 Cri LJ 1521 (SC): 1973 SCC (Cri) 45.
9. Jameel 2010 Cri LJ 2106 (SC).
10. Gurcharan 2010 Cri LJ 3339 (Del) (DB).
11. Rijo 2010 Cri LJ 1315 (Ker)(DB).
12. State of Madhya Pradesh v. Bablu (2014) 9 SCC 281 and State of Madhya Pradesh v. Surendra Singh 2014 (12) SCALE 67.
13. Hazara Singh v. Raj Kumar (2015) 3 SCC 441 (2013) 9 SCC 516 (2006) 2 SCC 359.
14. (2009) 7 SCC 254.
15. 2006 AIR SCW 436, (2006) 39 ALLINDCAS 94 (SC), 2006 CRI. L. J. 1132.
16. Hart, Punishment and Responsibility, p 1.
17. Hart, Punishment and Responsibility, p 159. See also Stephen: “A History of the Criminal Law of England” (1883), pp. 81-82.
18. Ediga Anamma v. State of AP AIR 1974 SC 799: 1974 Cri LJ 683 (SC): 1974 SCC (Cri) 479: (1974) 3 SCR 329 : (1974) 4 SCC 443.
19. Charles Sobhraj v Superintendent, Central Jail, Tihar AIR 1978 SC 1514: 1978 Cri LJ 1534 (SC): (1978) 4 SCC 104; Sunil Batra v. Delhi Administration AIR 1978 SC 1675: 1978 Cri LJ 1741 (SC): (1978) 4 SCC 494: 1978 SCC (Cri) 155.
20. Ram Narain AIR 1973 SC 2200: 1973 Cri LJ 1187 (SC): (1993) 2 SCC 86: 1973 SCC (Cri) 752: (1973) 3 SCR 911.
21. AIR 1880 SC 1579.
22. Ediga Anamma v. State of AP AIR 1974 SC 799: 1974 Cri LJ 683 (SC): 1974 SCC (Cri) 479 : (1974) 4 SCC 443 : (1974) 3 SCR 329.
23. Ibid. See also Santa Singh AIR 1976 SC 2386: 1976 Cri LJ 1875 (SC): 1976 SCC (Cri) 546: (1977) 1 SCR 229: (1976) 4 SCC 190.
24. 24. Modi Ram AIR 1972 SC 2438: 1972 Cri LJ 1521 (SC): 1973 SCC (Cri) 45: (1972) 2 SCC 630
25. Ram Narain AIR 1973 SC 2200: 1973 Cri LJ 1187 (SC): (1993) 2 SCC 86: 1973 SCC (Cri) 752: (1973) 3 SCR 911; Dagdu AIR 1977 SC 1579: 1977 Cri LJ 1206 (SC): (1977) 3 SCC 68: 1977 SCC (Cri) 421: (1977) 3 SCR 636; Jagmohan Singh AIR 1973 SC 947: (1973) 1 SCC 20: (1973) 2 SCR 541: 1973 Cri LJ 370 (SC): 1973 SCC (Cri) 169; Modi Ram, supra.
26. Mohammad Giasuddin AIR 1977 SC 1926: 1977 Cri LJ 1557 (SC): 1977 SCC (Cri) 496: (1977) 3 SCC 287; Nadella Venkatakrishna Rao AIR 1978 SC 480: 1978 Cri LJ 641 (SC): (1978) 3 SCC 544: 1978 SCC (Cri) 99.
27. Madhav Hayawadanrao Hoskot AIR 1978 SC 1548: 1978 Cri LJ 1678 (SC): 1978 SCC (Cri) 468: (1978) 3 SCC 544.
28. Madan Gopal (1992) 3 SCC 204, 226: 1992 SCC (Cri) 598: 1992 AIR SCW 1480: (1992) 3 JT 270: (1992) 2 Crimes 168 (SC).
29. Shivaji v. State of Maharashtra, AIR 1973 SC 2622.
30. AIR 1978 SC 1091.
31. AIR 1980 SC 636.