ORIGIN AND CONCEPT OF

PUNISHMENT

AKHILA LEKSHMI V L
ROLL NO:1
3RD SEM LLM
 INTRODUCTION

"penalty keeps the people in restraint, penalty protects them, the penalty remains awake
when people are asleep, therefore the wise have regarded punishment may be a source of
righteousness". -manu
• Punishment of wrongdoers is as old as wrongdoing and as old as society itself
• Each society has its own way of social control for which it frames certain laws and also
mentions the sanctions with them. these sanctions are nothing but punishments .
• The Object of Punishment is to protect society from mischievous and undesirable
elements by deterring potential offenders, by preventing the actual offenders from
committing further offenses and by reforming and turning them into law abiding citizens.
• Laws in a country should change by the change in circumstances and situations. In the
same way, the position of law on punishments has also evolved. There were different
types of punishments followed in ancient world which got changed in certain ways and
now the punishments given by the law are on a different level.
• Society defines the offences and prescribes punishment for
them.
• The kinds of punishment given are surely influenced by the
kind of society one lives in.
• During ancient period punishment was more severe as fear
was taken as the prime instrument in preventing crime
• In criminal law, punishment is allowed due to the wrongful
intent involved in the crime, the law does not really punish
the individual but punishes the guilty mind.
• Punishment can be used as a method of reducing the
incidence of criminal behavior either by deterring the
potential offenders or by incapacitating and preventing
them from repeating the offender by reforming them into
law-abiding citizens.
 UNDERSTANDING THE MEANING

• ‘Punishment’ is a process by which the state inflicts some pain to the persons or property
of person who is found guilty of Crime
• According to Aristotle, ‘Punishment is required to maintain equilibrium in the society.’

• According to , Kant, we could not regard world as moral, if in it, virtue goes unrewarded or
sin
• unpunished, therefore punishment is not only permissible but it is obligatory.

• According to blacks law dictionary ; In criminal law, Any pain, penalty, suffering, or
confinement inflicted upon a person by the authority of the law and the judgment and
sentence of a court, for some crime or offense committed by him, or for his omission of a
duty enjoined by law

• The Oxford Dictionary defines punishment -as to “make an offender suffer for an offence".
 1.Retribution: This is the idea that
PURPOSE OF wrongdoers deserve to be punished
PUNISHMENT proportionately to the severity of their crime.
It is rooted in the concept of moral
vengeance.
2.Deterrence: Punishment aims to deter
individuals from committing crimes. General
Punishment is defined as the infliction of a
deterrence targets society at large, while
penalty in response to an offense. specific deterrence focuses on preventing the
Philosophically, it serves several purposes: offender from reoffending.
3.Rehabilitation: This approach seeks to
reform the offender so that they can return to
society as a law-abiding citizen.
4.Incapacitation: By removing offenders from
society, punishment prevents them from
committing further crimes.
5.Restoration: This modern perspective
emphasizes repairing the harm caused by the
crime, often through restorative justice
practices.
 ORIGIN OF PUNISHMENT

The origins of punishment are deeply

rooted in ancient societies. Early
human communities developed
informal punitive measures to
maintain social cohesion and deter
harmful behaviors. As societies
became more complex, formal
systems of law and punishment
emerged.
 ORIGIN OF PUNISHMENT

• Ancient Civilizations

• Mesopotamia: The Code of Hammurabi (circa 1754

BCE) is one of the earliest known legal codes,
prescribing specific punishments for various offenses,
often based on the principle of lex talionis, or the law
of retaliation ("an eye for an eye").
• Ancient Greece: Punishments in ancient Greece
varied from fines and exile to more severe penalties
like death. Philosophers such as Plato and Aristotle
debated the purposes of punishment, laying the
groundwork for later theories.
• Roman Law: Roman law introduced a more
systematic approach to punishment, with well-defined
legal procedures and penalties. The Twelve Tables
(450 BCE) and later legal codes influenced the
development of Western legal systems.
• Medieval and Early Modern Periods
• Feudal Europe: During the medieval period,
punishment often involved public humiliation,
corporal punishment, and capital punishment. The
Church played a significant role in administering
justice.
• Enlightenment: The Enlightenment brought
about significant changes in the philosophy of
punishment. Thinkers like Cesare Beccaria argued
for more humane and rational approaches to
punishment, emphasizing deterrence and
proportionality.
ORIGIN OF PUNISHMENT IN INDIA

ANCIENT PERIOD

•Vedic Period:
The earliest references to punishment in India can be found
in the Vedas. The concept of ‘dhanda' (cosmic order) and
'Dharma' (duty/justice) laid the foundation for the
administration of justice.

•Dharmaśāstras:
Ancient legal texts such as the Manusmriti, Yajnavalkya
Smriti, and Arthashastra provided detailed guidelines on
punishment. Manusmriti, for example, prescribed various
punishments based on the caste and status of the offender,
reflecting the hierarchical social structure of the time.
MEDIEVAL PERIOD
•Mughal Rule: During the Mughal era, the Islamic legal system influenced the
administration of justice. The principles of Sharia law were applied, and
punishments included fines, corporal punishment, and death sentences.

COLONIAL PERIOD
•BritishRule : The British colonial period marked a significant shift in the
Indian legal system. The introduction of the Indian Penal Code (IPC) in 1860 by
Lord Macaulay laid the foundation for the modern Indian criminal justice
system. The IPC codified various offenses and prescribed corresponding
punishments, aiming for uniformity and consistency.
 C O M PO N E N T S A N D IN G R E D I E N T S O F P U N I S H M E N T

The Hon'ble Gujarat HC in the case State of Gujarat V Raghu explained the components and ingredients of
punishment and held the following ten most important components and ingredients of punishment.
1. 1.Punishment is applied by employing coercion and can be enforced even against the will of the punished.
2. 2. Punishment is a measure adopted and enforced by the State.
3. 3. Private punishment meted out by parents, teachers, employers, the community, etc. is outside the scope of
penological consequences of a crime.
4. 4. Punishment or the limits of punishment are stipulated in advance by the State. Punishment very clearly
embodies the principle of nulla poena sine lega, there is no punishment without the law.
5. 5. Punishment is applied by competent organs of the State in a properly constituted legal procedure. Due
process is the name of the game. Thus if a murderer is lynched by the people, then such a punishment is not
punishment in the criminological sense.
6. 6. Punishment is generally believed to be directly enforced on each individual personally. Any sort of 'collective
punishment' is outside the scope of penological punishment.
7. 7. Punishment is a disadvantage designed to act as a negative and to hurt the receiver of the punishment
mentally, emotionally, physically or financially.
8. 8. Punishment is the consequence of crime. The prohibited act must be listed and defined as a crime in the law
books.
9. 9. Punishment is applied in the name and defense of the society.
10. 10. Punishment is disapproval and expresses condemnation by the State.
 TYPES OF PUNISHMENT

• Human transgressions have been punished in various ways throughout history.

• The standard punishments in ancient Greek and Roman societies were death, Slavery, mutilation,
(corporal punishment) imprisonment or banishment were some of the common punishment
forms.
• Punishments are either corporal or not corporal.
• In the Bharatiya Nyaya Sanhita (BNS), punishments are explicitly defined under Chapter II and
titled as “Of Punishment.” This chapter, which has total 10 Sections (Sections 4 to 13),
comprehensively describes punishments and their types.
(I) Capital Punishment : The infliction of death by an authority as a
punishment is called capital punishment

• In Bachan Singh V. State of Punjab (1980 2 S.C.C. 684

The majority pointed out that the death penalty is to be imposed only
for “special reasons” and only in the rarest of rare cases.

• About 65 percent of countries have abolished the death penalty

either by legislation or in practice.
(II) Deportation or Banishment
• Next to capital punishment, a method of elimination of incorrigible or dangerous offenders is the
punishment of deportation.
• Some societies punish certain undesirable individuals, such as criminals and political and religious
dissidents, with banishment or exile.
• In India, the practice of transportation is known to have existed in penal system of British India as
well. It was popularly known as ‘Kala pani’. Prisoners in India, mainly freedom fighters were also
transported to Andaman and Nicobar island. It was finally abolished in 1955 and replaced by
‘imprisonment for life’.

(III) Corporal Punishment

• Throughout history, societies have used corporal punishments to inflict physical pain on wrongdoers.
The main kinds of punishment given in the ancient times may be described as flogging, whipping etc
• Corporal punishment includes modulation, flogging (or whipping) and torture. This was a very
common kind of punishment in the ancient and the medieval times.
• In ancient Iran and ancient India, and even in times of the Mughal Rulers and the Marathas, whipping
was commonly resorted to
• Perhaps surprisingly, less than 20 percent of the world’s countries have prohibited by legislation the
use of corporal punishment either as a sentence for a crime or for use in prison discipline.
(IV) Imprisonment
• It was originally used as a means of detention till the trial was completed or debt was paid
• It was originally used as a means of detention till the trial was completed or debt was paid. Although
the earliest use of imprisonment dates back to the ninth century, prisons in the modern sense became
the prominent form of punishment around 200 years ago
• 3 kinds simple , rigorous and life imprisonment

(VII)Solitay Confinement
• This kind of punishment seeks to inflict pain on the sociable nature of man, by denying him the society
of his fellow beings.
• Solitary confinement means keeping a person thoroughly isolated from any kind of contact with the
outside world it is conflicted with a view that feeling of loneliness may produce a wholesome influence
in the criminal and thus reform him
• There are certain restrictions in imposing solitary confinement.
These 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.
(d) It cannot also be awarded for the whole term of imprisonment.
(VIII) Forfeiture of Property
• Forfeiture is a penalty by which one loses his rights and interest in his property.
(IX) Fine
• Fine is pecuniary penalty. Imposing a financial penalty is considered to be a minor penalty.
Sometimes it is imposed along with imprisonment, and sometimes as a substitute for it.
(X) Community Service
• Offenders perform unpaid work for a specified number of hours within the community. It aims to
benefit society while holding offenders accountable for their actions.
 CHANGES IN BNS
Section 4(f) of BNS has introduced a new form of
punishment – Community service for the first time.
• Object is to reduce the burden on jails, community
service has been included in BNS as a punishment
for the first time and it is being given legal status.
The term “community service” is not defined in
BNS. However, it is defined by Explanation to
section 23 of BNSS to mean
the work which the Court may order a convict to
perform as a form of punishment that benefits the
community, for which he shall not be entitled to any
remuneration.
• Community Service is a step towards
reformative justice.
C O N C LU S I O N

• Earlier, penologists and criminologists advocated for

punishment with the sole aim of inflicting pain on the
offender.. With the evolution of utilitarian theories the aim
shifted to reformation, incapacitation and reintegration.
The focus shifted from offence to offender.
• With change in time and development of human mind the
punishment theories have become more tolerant. Presently
there is also opposition to capital punishment, which is
viewed as inhumane, though it was a major form of
punishing the criminals earlier.
• . Worldwide now there is an increasing focus on reducing
imprisonments and using alternatives to imprisonment as a
mode of punishment.
• Penologist today therefore advocate for non-custodial
remedies such as probation, parole, discharge, community
service orders, fines etc. that seek to punish, rehabilitate
and heal the offender in such a way that he will not revert
to crime.