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Crime and Punishment in Modern India

For ages criminologists have strived towards making the administration of criminal justice system fairer and just. There has been a metamorphosis with the procedures ensured under the Criminal Procedure Code. The provision of arrest and implementation of police procedures have all been amended to incorporate a free and fair procedure.

Wherever power is endowed upon the Judges, checks and balances have been introduced in the system to ensure that the judges are not arbitrary but must act with reason. The legislation, be they substantive or procedural, has echoed through each and every letter and phrase the concept of justice. It is a cardinal principle of criminal jurisprudence that let thousands of offenders' escape punishment but not one single innocent person suffer punishment.

This lofty vision is deeply embedded in the administration of Criminal Justice System. Most remarkable is the penal system which distorts justice all the more. The implementation of the punishment to an offender has to some extent been noticed by penologists and so it has been rectified and a lot of change is visible in the modern times.

Very little attention was given to the question of the kind and the quantum of punishment which must be primary factors in awarding justice to the system. The civilized society of today has approved of the fact that the kind of punishment is quite in tune with the reformative theory of punishment.

But it is; high time that the penologists must think about varieties of punishment as the variety of offences has multiplied. However, keeping this in mind, I have upheld in this whole work that how the concept of punishment, as in the present model instrumental in distorting the sacred concept of justice in the administration of criminal justice system in modern society.

Concept & Historical Development of crime and punishment

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 the punishments. 'The first thing to mention in relation to the definition of punishment is the ineffectiveness of definitional barriers aimed to show that one or other of the proposed justifications of punishments either logically include or logically excluded by definition.'

It is this perspective that the problem of crime, criminal and punishment is engaging the attention of criminologist and penologists all around the world. A "crime has been defined by Salmond as an act deemed by law to be harmful for society as a whole although its immediate victim may be an individual, thus a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim's familiy'1.

Punishment and crime definition
The word "PUNISHMENT‟ is also derived from Latin "PUNIRE‟. "Punire most probably might have inspired by the Phoenician method of execution by means of crucifixion. Just like crime the word punishment also came to English through French."28 In "French the word punir, or punishment meant to cause a person to suffer for an offence".

The word "CRIME‟ is derived from Latin "CERMO‟. In Latin "cermo‟ means I decide; I give judgment‟ and crimen‟ means charge or cry of distresses. The word crime came to English through French in twelfth century. In mid thirteenth century the English word "crime‟ meant "sinfulness‟. As per Webster's New Dictionary and Thesaurus crime means "An act punishable by law."

In general, "crime‟ can be defined as a behaviour that violates legal laws, rules and regulations 54 established by a society. Crime is generally defined as a wrong doing committed knowingly or unknowingly.

Concept of Punishment
Before dealing with the theories of Punishment, it would be pertinent to explain the concept of punishment. Sir Walter Moberly, while accepting the definition of Punishment as given by Grotius, suggests that punishment presupposes that:
  1. What is inflicted is an ill, that is something unpleasant;
  2. It is a sequel to some act which is disapproved by authority;
  3. There is some correspondence between the punishment and the act which has evoked it;
  4. Punishment is inflicted, that it is imposed by someone's voluntary act;
  5. Punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable for him and for his wrong doings.
Salmond's definition of crime: Crime is an act deemed by law to be harmful for the society as a whole though its immediate victim may be an individual. He further substantiates his point of view through the following illustration a murderer injures primarily a particular victim, but its blatant disregard of human life puts it beyond a matter of mere compensation between the murderer and the victim's family.

Moreover, considering all other things to be equal, the application will be and is bound to be different in each individual case. Furthermore, there are almost no such universal law, which can be plausibly held to be capable of being known to be formulated without introducing a reference to the consequences they would produce in individual instances.

Kant was so studious to avoid the reference to empirical circumstances and consequences of every individual which varies with circumstances, education, social bindings and so on. As a result of consideration like these there are now hardly any philosopher left who would hold that we can deduct from universal laws what it is right to do in all particular cases.[1]

The great philosopher Hegel is also of the view that punishment in its strict sense is an attempt to bring about reformation by external means but it can only succeed if an internal psychological process of 'repentance' is set at motion and this process may occur without external means.

Everyone as a member of the society owes certain duties towards his fellowmen and at the same time have certain rights and privileges which the other has to ensure for him.

Before dealing with the theories of Punishment, it would be pertinent to explain the concept of punishment. Sir Walter Moberly, while accepting the definition of Punishment as given by Grotius, suggests that punishment presupposes that:
  1. What is inflicted is an ill, that is something unpleasant;
  2. It is a sequel to some act which is disapproved by authority;
  3. There is some correspondence between the punishment and the act which has evoked it;
  4. Punishment is inflicted, that it is imposed by someone's voluntary act;
  5. Punishment is inflicted upon the criminal, or upon someone who is supposed to be answerable for him and for his wrong doings.

Punishment has the following features:
  • It involves the deprivation of certain normally recognized rights, or other measures considered unpleasant.
  • It is consequence of an offence.
  • It is applied against the author of the offence.
  • It is applied by an organ of the system that made the act an offence.
  • Criminal Justice System
The concept of criminal justice refers to certain theoretical prepositions which are implemented through legal precepts and the administrative apparatus.
Keeping in view the objectives of criminal justice the basic functions of the System of Criminal Justice pertain to:
  1. Determining whether a crime has been committed;
  2. Detecting possible offender;
  3. Apprehending the suspect;
  4. Providing for a review of evidence by the prosecutor to determine whether the case against the alleged offender a merits prosecution;
  5. Providing for a review of the prosecutor's decision by an independent agency such as a judge of the courts of justice.

Historical Development of Punishment
Philosophical reflection on a penalty has helped cause and is itself a part of controlling developments within the understanding of penalty that have taken place outside the academy within the world. A generation part sociologists, criminologists, and penologists became disillusioned with the rehabilitative effects (as measured by reductions in wrongdoer recidivism) Of programs conducted in prisons geared toward this finish in 1974.

Punishment of Ancient time:
Legal norms are the basis on which criminals and non-criminals are distinguished. The law laid down by Gautama, Vasistha etc. represent an earlier stage than those of Manu. One of the forms of substitutes for individual action is the law of equal retaliation, which was a common element in many of the ancient codes of law.

Amongst the oldest of the known legal codes with schedules of penalties for specific crimes are those of ancient Sumerians and Babylonians. Of these the Code of Hammurabi the sixth King of Babylon, has been most completely preserved. The criminal law of ancient and primitive society appears to be haphazardly explained, but on a focused and clearer study, it reveals to us that they are very scientifically placed.

It was held in the case of V.D. Dhanwateyv. Commissioner of Income Tax1 6 George B. Vold, Theoretical Criminology, Oxford University Press, Oxford, (1979), p. 36.[2] 1AIR 1968 SC 683. that, 'while interpreting the ancient texts, the courts must give them a liberal construction in furtherance of the interest of the society.
  1. Hindu Period
    The dawn of history was the golden age. In Satyayuga, the rules of conduct were strictly observed by all including the King, or the headman of the tribe. Where there was no infringement of any rule or law, there was no question of punishment. In fact, they were ruled by Dharma and they even did not find it necessary to have a King or his laws.

    This period was followed by the intrusion of the Aryans in the country. The fundamental idea of severe punishment recommended against criminals perhaps was to strike terror in the hearts of all potential criminals by the infliction of sure and swift punishment. The 'tooth for a tooth and an eye for an eye' concept had a strong hold.

    Penal Policy in Ancient Hindu Period
    The original conception of crimes in Hindu law has begun with the violation of religious and social rules followed by elaborate enjoinment of prayaschitta. While in the law of many ancient and medieval states, a distinction was drawn between the noble and common, here in India this distinction took a different shape, with respect to that of the caste. It is quite clear from above, that the earliest conception of criminal justice administration was blend of the religion and law3.
    • Dharam Shastras:
      In Dharam shastras it is interesting to observe that for them the crime principally meant an evil act done with a certain degree of violent attitude.
    • Manu Smriti:
      Smritis formed an important part as a source of knowledge of law in ancient India. Of these Smritis, Manu smritis the comprehensive treatise on the conduct of Hindu society, Hindu ways of life and Hindu polity. According to Manu smriti law owes its existence to God. Manu has selected ten (10) places on the body where punishment should be inflicted in the case of non-Brahmanas, but the Brahmanas were to be banished without inflicting the least hurt.

      Manu says that the punishment must always be just [3]. A wife violating her duty towards her husband was to be devoured by dogs in public place and male offender was to be burnt on a red-hot iron bed by putting logs under it[4].
    • Yajnavalkya Smriti:
      Yajnavalkya's work is more systematic than Manu. He has divided his work into three parts: Achara (conduct), Vyavahara (law) and Prayaschitta (expiation). Yajnavalky a speaks of four classes of punishment namely, censure, rebuke, pecuniary punishment and corporeal punishment and says that these should be used either separately or jointly according to the nature of the crime.
    • Brihaspati:
      Brihaspati enumerated the correlation between penalty and justice. He says, 'No sentence should be passed merely according to the letter of law. If a decision is arrived at without considering the circumstances of the case, violation of justice will be the result.
    • Yajnavalkya Smriti:
      All these jurists exhibited a praiseworthy analytical insight and the most perfect acumen of elaborating and explaining the juristic principles and philosophy[5].
  2. Islamic Period
    The glorious Hindu period was subjected to discontinuation after the attacks of the Muslims and the beginning was made by Mohammudbin-Qasim in 712 A.D. who came to India as invader and returned thereafter. The real penetration into India was made by Qutubuddin Aibek who, in reality established himself firmly in India after waging series of wars and finally established his supremacy in the whole of Northern India.

    The Muslims thereafter continued to rule over India for centuries till the year 1857 when the last Mughal King Bahadur Shah Zafar was dethroned by the Britishers and the English established themselves as the next rulers of India. The Islamic jurisprudence was imported into India by Muslims with certain modifications to suit the circumstances of the age and to satisfy the needs of the people of the time[6].
However, different interpretations of Islamic law exist among different sects of Muslims in terms of when and how law should be applied[7].
  • Islamic Rule and Law:
    From the time of the conquest in India by the Muslims, the victors imposed their own criminal law on those whom they conquered. The primary basis of the Islamic criminal law was the Quran, which is believed to be of divine origin. But the laws of Quran were found inadequate as it was just few of the verses which contained provisions dealing with matters of civil or criminal nature[8].

    As the Apostle who had divine authority, political authority that resonated with the tribal spokesman (Shaykh) who was now transferred under the Islamic precepts to the prophet and his successor[9]. These principles and ideas were developed into a systematic and coherent legal system with evolving times. Variation in schools of Islamic jurisprudence evolved from the work of early jurists working in different regions of the expanding Muslim empire[10].

    The third source of legal authority was received from the companions of the Prophet and last authority was the ideas and opinions of the four great Muslim jurists namely- Abu Hanifa, Nauman Bin-i-Thabit, Abu Abdullah Malik bin-i-Ans, Abu Abdullah MuhammedIba-i-IdrisooShafi and Abu Abdullah Ahmad Ibn-i-Hanbai, of all these the Hanafi Code was the most prevalent in North India[11]. These minor offences included counterfeiting coins, arson, stealing shrouds from tombs, poisoning, gambling and selling of wine and other intoxicants[12].

  • Punishments under Islamic Law
    Purpose and Nature Punishment in the pre-Islamic Arabia was based primarily on the principle of retaliation (Lex Talions). Lacking a state or central authority in nomadic and tribal life to regulate conflict and disputes, punishment for wrongdoing was privately dispensed by the victim and affiliates such as extended family or patron tribes. Qisas or Retaliation

    The Quran uses the term Qisas in the sense of 'equality'. The established mode of execution was by decapitation but later it changed to hanging. Retaliation for offences against the person, not affecting life, was restricted to wounding and maiming. The essence of the principle of Qisasis human equality and security of life in society[13].

    Diyut or Blood Money Through Allah's Divine revelations to Mohammad and the teachings of the prophet, Islam provided an alternative to the punishment of blood vengeance. This alternative was the acceptance of "blood money". The principles of how each clan or subdivision of the community were responsible for the collection of its members, was clearly laid down in the constitution of Medina, whereas Mohammad's doctrines about bodily resurrection and life after death provided the spiritual basis for acceptance of blood money over blood vengeance[14].

    In cases of quasi-deliberate homicide, erroneous homicide or involuntary homicide, in addition to the payment of the fine, the offenders were liable to penalties of expiation and exclusion from inheritance[15].
  • Hudhud (Hadd) or Specific Penalty
    The obvious connection between the Islamic faith and Islamic Law is found in the nature and punishment of hudhud offences. The punishment of Hadd was extended to the crimes of adultery, of illicit sexual intercourse (Zina) between married or unmarried persons of false accusations, of drinking wine, of theft and of highway robbery[16].
  • Tazir and Siyasa
    The remaining class of criminal acts under Islamic Criminal Law id called Tazir. Offences under this category are considered criminal acts because they threaten at least one of the five essential guarantees of Islam the practice of religion the development of mind, the right to procreation, the right to personal security and the possession of property and wealth[17].

Basic Principles for punishment and sentencing Law under Islamic Jurisprudence
  • British Period
    Administration of criminal justice so established by the Muslim rulers was inherited by the administrators of the East India Company. In 1623 a charter was issued by James I in order to strengthen the hands of the company, in enforcing its laws and punishing the persons, subject to a jury trial in case of capital punishment. It soon appeared that some of the provisions of the Islamic Law could not be allowed by the East India Company on grounds of humanity and justice[18].
  • Period of Transformation 1772-1861:
    The nature of the earliest changes in penal practices in India with Warren Hastings (1772-1834) and the emergence of unified penal system for India are explored, with example of showing changes and reforms between 1772 and 1834 in the areas of dacoity and robbery, burglary, homicide etc[19]
  • Enactment of Indian Penal Code:
    The Indian Penal Code, 1860 (IPC) which was largely the work of Thomas Babington Macaulay was the first codification of criminal law in British Empire and is the longest serving criminal code in the common law world. It was formed by the ideas of Utilitarian reformers, notably, Jeremy Bentham, who advocated a wide range of Reforms to English criminal law.

    Macaulay's efforts, drafted in 1837, came closest to Bentham's ambitious conception of comprehensive codification- one that was designed to displace the common law entirely and characterized by the principles of lucidity and accessibility of provisions and consistency of expression and appreciation[20]. Section 53 of the Act made provisions for the appointment of Law Commission in India for the purpose of consolidation and codification of the Indian Laws[21].
  • Historical Context and Originating Principles the Charter Act, 1833:
    Reorganized British government in India by creating a unified legislative body in the form of an appointed Legislative council headed by the Governor General, which centralized and coordinated civil and military authority and East Indian Company commercial interests.

    The commission was specially instructed to draft an Indian Penal Code, 1860. Though the draft was submitted in 1837, it did not become a law till 1860. This reform continued throughout the period before the Indian Penal Code came into existence and these provisions were taken into the Penal Code unaltered[22].

    The two guiding principles of the British administrators in India, at the end of the eighteenth century had been: (a) to change the laws of the country as little as possible and (b) to apply the maxim of justice, equity and good conscience where and when it was necessary to change such laws[23].

Dispensation of the criminal Justice System
The entire criminal jurisprudence has been consolidated for the purpose of upholding the essence of justice and formulating as well as implementing plethora of criminal laws in consonance with the changing social attitudes towards crime and criminal.

Ancient Hindu Period The only concept that prevailed was that of Dharma and Adharma. According to Manu, non-injury, truth, non-theft, purity and control on one's senses constituted Dharma. Of these, truth, purity and control on senses were considered personal virtues and the non-observance of the same constituted a sin. The term 'dharma' is used in the second verse of first chapter of the Code of Manu (Medhatithi- the first commentator of Manusmriti). Any deviance by an individual from the prevalent custom may lead to the commission of crime.[24]

Ancient Penal Institutions:
in the Rig Veda, the meeting place of the people or the assemblies of warriors such as Sabha, Samiti, and Vidhata are mentioned. In these assemblies, disputes private and public used to be decided, as they exercised judicial powers, with the progress of Aryan civilization the Sabha usually with the King at its head came to exercise its judicial functions[25].

Gautama enumerates the essentials of a Court by stating that the King should look to the cases in the Court with the help of:
  1. Purusa (Bailiff),
  2. the Sabhyas (Assessors),
  3. the Ganaka (accountant)
  4. the clerk
  5. gold
  6. Fire
  7. Water and
  8. the Pradvivaka (Chief Judges) and others.
Apastamba also laid down certain minimum. qualification for all persons (including arbitrators) who have the duty of deciding disputes. The chief judge was expected to be well versed in the Vedas and six Vedanganas, logic, history and the Puranas.
  • Ancient Trial Procedure the Hindu Mythology:
    Enumerated the concept of Dharmaraj who is the deity appointed to administer justice. The Veda, the Smriti, the approved usage, and what is agreeable to good conscience are according to Manu the highest authority on this law, rather than the direct evidence of Dharma.
  • Court System with Advent of the British the East India Company:
    was incorporated in England in 1600 by a charter of Queen Elizabeth which defined the constitution, powers and privileges of the company. The General Court was empowered to make and issue orders for the good governance of itself, its servants and for the betterment, advancement and continuance of the trade[26]

    The chapter on Historical perspective holds relevance as the Historical research is a very effective tool in determining how the law and rules evolved during its life, and how these events made an impact of what the said scenario is at present.

International Human Rights Norms and The System of Punishments

Although human rights as a concept transcend all nations, groups and even cut across varieties of historical and political experiences, the concept in itself was not sufficient to ensure that all human beings could enjoy their essential rights similarly. discourse in the West[27].

Eventually, each succeeded in forming a widespread movement because of the language of inalienable rights and corresponding rights movements.[28] The socialist-labour movements and the free religion movements were also formed to actualize one or more of the promises of the revolutionary era".[29]

The primary object of human rights law is to humanize the system by which the laws of a state are administered in regard to various matters, and the object of criminal jurisprudence is to indict the persons violating the law of the land. In such a system the wrongdoers enjoyed only such of the safeguards which they could avail of as a subject, as a citizen, or a national of the state. The National &International Perspective on Human Rights

Meaning of human rights Initially, the meaning of human rights was confined to narrow bounds of mere freedom from arbitrary government; human rights were described as those minimal rights which every individual must have against the state or the public authorities by virtue of his being a member of human family irrespective of any other consideration.

Role of the United Nations: Mandates and Organs:
An overview the promotion and protection of human rights has been a major concern for the United Nations (UN) since 1945 and to this effect, it has resolved that the terrors of the World Wars should never re-occur. Over the years, a whole network of human rights instruments and mechanisms are developed by the UN to ensure the primacy of human rights and to confront human rights violations wherever they occur.

It is said: In accordance with the treaties, States parties have set up treaty body committees that may call upon States to respond to allegations, adopt decisions and publish them along with criticisms or recommendations"[30]. All the fifty States represented at the San Francisco Conference unanimously approved the UN Charter, without reservations.

At the time of formation of the UN, the world community was split along into three axes: the great powers, the small and middle powers, and the enemy States.[31] All the fifty States represented at the San Francisco Conference unanimously approved the UN Charter, without reservations[32]

Finally, there were the enemy powers. They were the outsiders against whom the other nations were to be 'united', and were to have no role in drafting the new Charter, they were to be excluded, initially, from the resulting organisation[33].

International Perspective of human rights
The humanitarian concept of protection and care of the people, particularly the under-privileged is an important issue of international concern and had been

Thinking of eminent scholars and jurists.

In the initial stages, the international human rights organizations were founded for achieving the same goal; such as the London based Anti-Slavery Society for human rights (1938), the international committee for Red Cross, the French League for human rights (1898) then there were certain nongovernmental organizations (N.G.O.'s) such as People's union for civil Liberties (P U CL) (1974), the Peoples union for Democratic rights (P U D R) in 1976 and Centre for Democracy (CFD).

"which is based on the Statute of the Permanent Court of International Justice.[34] The International Court of Justice (ICJ) is composed of 15 judges, who are elected for a term of nine years by the General Assembly of the United Nations, and the Security Council.

A Registry, its administrative organ, assists it. It is said:
"The discussions at the San Francisco Conference regarding the constitution of the court were chiefly directed to the question whether the Permanent Court of International Justice should be made an organ of the United Nations or whether a new court should be established. The majority of the Committee (Commission IV-Judicial Organisation) finally decided that a new court should be created"[35]

The majority of the members of the Committee mentioned above were initially in favour of compulsory jurisdiction but later it was decided by a majority to retain the 'optional clause 'set out in Article 36 of the Court's Statute under which the member States 'may at any time declare that they recognise without special agreement the jurisdiction of the Court in all legal disputes concerning:
  1. interpretation of a treaty;
  2. any question of international law;
  3. the existence of any fact which, if established, would constitute a breach of an international obligation; and
  4. the nature or extent of the reparation to be made for the breach of an international obligation.

In addition, the Court has its jurisdiction to decide all disputes referred to it by virtue of a particular convention or treaty. All members of the UN are ipso facto parties to the Statute of the ICJ. A non-member may become a party to the Statue of ICJ on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council.[36]

The ICJ has authority to render its advisory opinion upon a request made by either the General Assembly or the Security Council on any legal question. Other organs of the United Nations and specialised agencies may request for advisory opinions of the Court on legal questions arising within the scope of their activities, at any time if authorised by the General Assembly[37]

International Bill of Rights: Substantive and Procedural aspects
Internationally recognised human rights are those included in the International Bill of Human Rights. The International Bill of Human Rights comprises of the UDHR, the two Covenants adopted based on UDHR, namely, International Covenant on Civil and Political Rights, the International Covenant on Economic Social and Cultural Rights of 1966 and the Optional Protocols to the two Covenants. The International Bill has been extensively elaborated and recognised by series of conventions and declarations, at the universal level, regional level and national levels they must accept mechanisms of control within their respective sphere of domestic jurisdiction.[38]

The Universal Declaration of Human Rights 1948
UDHR has presented norms and procedures that serve as a prelude to the development further of an international culture of human rights[39] The Declaration has been the foundation for codification of human rights, and presently the international legal system is replete with global and regional treaties based, in large measure, on the Declaration.[40]

The UDHR set down minimum standards in respect of a number of wide ranging identified rights and freedoms. It contains 30 Articles relating to those rights and freedoms that are every person's birth right. It is said, the UDHR was only the embryo of an international Bill of Rights and it was not treated at first as a true source of legally binding obligations. The Preamble to UDHR bears testimony to the fact that it was the first normative response of the international community to the terrible experiences it had undergone during the occurrence of wars[41]

Following are the rights enumerated in the Declaration:
  • Right to Life, Liberty and Security of person (Article 3);
  • Prohibition of slavery or involuntary servitude (Article 4);
  • Prohibition of torture or cruel, inhuman or degrading treatment or punishment (Article 5);
  • Right to recognition as a person before the law (Article 6);
  • Right to equality before the law, non-discrimination, and equal protection of the law (Article 7);
  • Right to an equal remedy (Article 8);
  • Right to freedom from arbitrary arrest, detention, or exile (Article 9);
  • Right to a fair and public hearing by an independent and impartial tribunal (Article 10);
  • Right to be presumed innocent until proven guilty in accordance with law and right not to be held guilty for any act or omission that did not constitute an offence at the time of commission of offence, and right not to be punished with a higher penalty than what was the punishment at the time of commission of an offence (Article 11);
  • Right to freedom from arbitrary interference with privacy, family, home or correspondence attack on one's honour and reputation (Article 12);
  • right to freedom of movement and residence within state boundary and right to leave any country and to return to one's home country (Article 13);
  • right to seek and enjoy asylum (Article 14); right to nationality and right to right to change nationality (Article 15);
  •  right to marry and found a family of choice (Article 16);
  • right to property (Article 17);
  • right to freedom of thought, conscience and religion (Article 18);
  • right to freedom of opinion and expression (Article 19);
  • right to freedom of peaceful assembly and association (Article 20);
  • right to take part in government of one's home country, have access to public service, and take part in elections (Article 21);
  • right to social security (Article 22);
  • right to work, to equal pay for equal work, and to form and join trade unions (Article 23);
  • right to rest and leisure, limitation of working hours, and periodic holidays with pay (Article 24);
  • right to a standard of living adequate for health and wellbeing, including clothing, housing, food, medical assistance or medical care and other necessary social services and right to security in the event of unemployment, sickness, disability, widowhood, old age or other incapacities that results in lack of livelihood in circumstances beyond one's control (Article 25);
  • right to education (Article 26); right to participate freely in cultural life and enjoy arts and to participate in scientific advancements, and right to protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (Article 27); and
  • right to a social and international order in which the rights and freedoms can be fully realised (Article 28).

The International Covenant on Civil and Political Rights, 1966
Though the International Covenant on Civil and Political Rights, 1966 (ICCPR) is an offspring of the Declaration, it differed from it in many ways as it provided for a detailed elaboration of civil and political rights, regulated the practices of the States in matters of derogation of rights. Indeed, it provided an implementation mechanism and is a treaty having better binding force than the Declaration.

The ICCPR provides for obligations on State Parties.

  1. Sources of international law of human rights (a) international Treaties In 1966, The (ICCPR) and the international covenant on economic, social and cultural rights (ICESCR) were taken up by the United Nations, declaring the articles contained in the UDH Robligatory on all signatories and parties to this treaty, thus human-rights law emerged. Convention on the Elimination of All Forms of Racial Discrimination, 1966; Convention on the Elimination of All forms of discrimination against women;1979, Convention against Torture (CAT), 1984, Convention on the rights of the Child (CRC) 1989; Convention on the rights of Persons with Disabilities (CRPD) 2006, Convention on the rights of all migrant workers and members of their families (ICRMW) 1990.
  2. Customary international law in addition to protection by international treaties, customary international law may protect some human rights, such as the prohibition of torture, genocide and slavery and the principle of non-discrimination.
  3. International humanitarian law The Geneva Conventions which form part of the international law of War are relevant to the treatment of the sick, the wounded, the injured and the dead persons; it is relevant to the treatment of the aliens, the civilians and others during the time of war. They are based upon the principles of human rights law and have been contributing to the development of humanitarian law.
  4. United nations Charter united nations charter is a set of rules for protecting dignity of human beings all over the world residing in various nations developed and developing. UN charter professes and advises all nations democracies and monarchies to observe equality between men and women, and Equality between races between men and women having distinct skins colours.

The Nature of Human Rights
The Concept of Legal Right

A 'Legal Right' is the genus of which human rights are the species. Conceptually, a legal right is nothing but a beneficial socio-political gratuitous endowment for people of various colours and hues and economic statuses recognized by law.

The Concept of human rights human rights are understood
By each of us as inseparable basic endowments to which a person is by birth entitled just because he or she is born human. human rights are conceived as universal since they are applicable to each of us irrespective of the country of our birth and the place, we live in.

Classification of Human Rights
Spelt out and organized in a number of ways. At an international level the most common categorization of human rights has been to split them into two groups:
  1. civil and political rights, and
  2. economic, social and cultural rights.
Civil and political rights are embodied in articles from 3 to 21 of the universal declaration of human rights (UDHR) and in the international covenant on civil and political rights (ICCPR). Economic, social and cultural rights are enshrined in Articles from 22 to 28 of the universal declaration of human rights (UDHR) and in the international covenant one economic, social and cultural rights (ICESCR).

Three Generations of human rights one more classification offered by Czech-French worldwide Official and University Professor Karel Vasak, is that there are three generations of human rights: First-Generation civil and supporting rights (right to life and political participation), Second-Generation financial, social and educational rights (right to subsistence) and Third-Generation harmony human rights (right to peace, right to clean environment).

Universal declaration of human rights, 1948:
The first concrete step by way of formulating the rules on various human rights was taken by the United Nations general assembly in December 1948, by adopting the universal declaration of human rights. It was intended to be followed by an international Bill of rights which could be legally binding on the covenanting parties.

Rights are 'claims and entitlements' that entail development to every right- holder and are often explained by reference to values such as dignity and justice that are closely related to wellbeing of the individuals and society. Rights not only promote well-being of the individuals that is necessary to live fully with dignity but also bring about necessary social change as they are linked with the pursuit of collective good.

Further, rights provide a basis for challenging the boundaries of the political authority which in turn allows one to comprehend legitimacy of State's actions and inactions. Therefore, rights work as a protection against tyranny and the value of rights lies in its utility and influence factor.

One can receive rights by either custom or contract, alternatively by national or international law, or because of being human. Whether natural, statutory, moral, or human right, all kinds of rights are important to humankind. Rights are always evolving and are rule-protected interests. Enforcement of rights depends upon the legal system.

System of Punishment under the Indian Penal code and the need for Reform for Modern India

Under colonial rule, India was governed by the laws made by the Britishers. This was for the convenience of the colonial empire and so that they could attain the objective of their ruling. Indian penal code (IPC) was formalised under the British Rule around 150 years ago. It specifies crimes and their punishments.

Although the IPC is allegedly one of the strongest criminal laws and is extensive in its scope, there have been many amendments over the years in the IPC, but there are many areas and provisions in this law that still need restructuring. Introducing certain amendments to the Indian Penal Code will ensure that the crimes that have evolved in recent times are also addressed.

The Penal Law of India comprises the provisions of the General law and the provisions of the Special laws. The general law consists of the provisions of the Indian penal code, and the special laws consist of the provisions which deal with certain specific subjects relating to persons, places or things. These two segments together constitute the penal law of our country.

Before taking up the study of any particular provision of law which is hit by such situations the researcher would like to spell out the modes of punishment in the general law of crimes in respect of which controversies have arisen calling for a change in the law.
  1. Punishments under the penal code:
    Section 53 of the Indian penal code enumerates the different punishments which the courts may award to a person convicted for a crime:
    1. Death penalty
    2. Imprisonment for life;
    3. Imprisonment which is of either description: rigorous or simple;
    4. Forfeiture of Property;
    5. Fine.
    In respect of each of the above punishments the courts are supposed to follow the procedure prescribed by the relevant provisions of the substantive and the adjective laws.
  2. Capital Punishment under the provisions of the Indian Penal Code
    Capital Punishment is the highest punishment provided in the Indian law. Vide sections of Indian penal code this most severe punishment may be awarded for the following offences:
    1. Attempt to topple the constitutionally and legally established government by armed rebellion The penal code, dealing with the above offence provides for the punishment of death. It says, those who attempt to topple the legally established government by using arms and ammunition or abets such activity shall get death in punishment or shall get incarceration for life and also will be awarded monetary fine.
    2. Supporting uprising, encouraging mutinous people including armed forces. The penal code dealing with this offence provides that those who encourage uprising and instigate mutinous elements in the nation's military including army navy and air force, if arm Ed rebellion be found committed in consequence of that abetment, be punished with hanging till death or with incarceration for life or with three years in jail plus monetary fine.
    3. Presenting concocted vexatious proof with wicked object of falsely obtaining death sentence to an innocent Section 194 of the penal code dealing with this offence provides that those who concoct by perjury wrong proof with object of mischievously causing an innocent person to be charged such offences that the innocent will get death penalty such persons doing perjury will get ten years hard labour in jail or life in jail plus monetary fine.
    4. Liable for capital punishment. Section 194 has been drafted in order to discourage people from telling falsehood to court in spite of knowing that due to such falsehood some innocent person is likely to be put to death. There must be fear in the minds of witnesses that they cannot speak anything false under oath.
    5. Murder: The penal code provides the punishment for murder; it says, that those who cause murder of another shall be awarded death or incarceration for life and also monetary fine.
    6. Abetment of suicide or a minor or an insane person the penal code dealing with this offence provides that if any encourages or creates circumstances that another embraces death by an act of suicide then such person who encourages and creates circumstances forcing someone to embrace death by suicide, shall be punished with death and incarceration in jail for ten years and also monetary fine.
    7. Punishment for murder of another person by a life convict Section 303 of the penal code dealing with the offence of murder by life convict, provides: Those who are themselves are convicts under life imprisonment if they commit murder of someone then such convicts shall get only death and nothing less than death.
    8. Dacoity with murder: Indian penal code provides punishment of death for murdering the victim or victims while committing armed dacoity. The section describes that if one of five dacoits or more of five dacoits of the gang of five or more kill one or more resisting persons while looting them then every one of the gang of dacoits shall be punished with death or life imprisonment or incarceration in jail with hard labour for a term up to ten years and a monetary fine additionally.

Capital Punishment or Imprisonment for Life is uncontrolled and unguided. The supreme court held that it does not find any merit in this contention. It has been pointed out by this court in Budhan Chowdhury vs. The state of Bihar that Article 14 can hardly be invoked in matter of judicial discretion.

The American experience is also not different. discretion given to the Jury by law in capital sentences was challenged before the supreme court of America in Mcgautha vs. California whether in the absence of any standards for deciding when the accused should be sentenced to death or to life imprisonment; the provision of law which gives the discretion to the jury was constitutional.

Some of the circumstances of aggravation and mitigation were mentioned in the Appendix to the code. But it was pointed out that the Drafts men of the code did not restrict themselves to the items referred to in the Appendix but expressly stated that besides the above circumstances the court was bound to take into consideration any other facts the court deems relevant. In India, the supreme court observed, this difficult responsibility is cast open magistrates and for additional than a century the judiciary are delivery out this task under the Indian penal code.

  • The Magna Carta of 1215 had provided that:
    "No freeman shall be taken or imprisoned, or be diseased of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any other wise destroyed; nor will we pass upon him, nor condemn him, but by the lawful judgment of his peers, or by the law of the land.
  • Movement at the international level
    The roots of the rule with regard to abolition of capital punishment at the international level therefore are the legal instruments on the right to life which have been adopted under the aegis of the United Nations organization.
  • Movement at the Regional level the trend set by the United Nations was followed by the regional organizations

Through their instruments, the important among them were the following: - The American declaration of the rights and duties of Man, 1948, adopted the following provision: "Every human being has the right to life"

This declaration was followed by a Convention, which provided as follows:
Each and every individual has the right to dignity and respect as human being. Everyone's life and dignity have to be protected legally.
  1. In those nations where capital punishment has not been abolished in those nations death can be given sparingly only in cases of cruellest murders committed with bar baric in sensitiveness.
  2. In nations which already abolished death sentence in those nations death sentence shall not be reintroduced.
  3. No nation shall keep on its statute book death sentence for political offences.
  4. No nation shall execute minors below eighteen years and old people above seventy years of age.
 In case of those who were minors at the time committing offence shall not be punished with death if becoming major during trial. The next instrument at the regional level is the Convention adopted by the Council of Europe for the protection of human rights and Fundamental Freedoms, 1950, which stated as follows:
  1. law shall protect life of everyone. life of nobody can be taken except by a lawful conviction and award of death by a competent court.
  2. No enforcement officer shall use force greater than that required to keep someone under control so as to cause injury leading to death of a person.

Punishments in their judgments clearly write that they punishing and that leniency will not be shown. In country like India where there are large number of cases of bride burning, honour killing and rape related murders, it is futile to think of any reformation and correction in the behaviour of murderers.

Public opinion and punishment
The public opinion and public outcry are both important to the government in deciding the legal and judicial policy. If the government had shown the oppressive policy against the students and shown less care to their sentiments then government would lose popularity and must be out of power in the next poll. In Assemble elections and then parliamentary election. Public opinion is the factor that must go a long way in deciding whether capital punishment should be retained or abolished.

Most death sentences given in India are based on circumstantial evidence alone
When murders take place in darkness and at lonely places the eye witnesses do not exist. Sanjay Chopra and Geetha Chopra, Children of Naval commander were given lift in the car by Criminals Ranga and Billa. Ever since India became independent there has been a controversy with regard to the abolition of capital punishment. The agencies which call for the abolition of death penalty are from the United Nations.

The human rights Group assert the view that the capital punishment is unreasonable, inhuman and degrading; hence it should be abolished. Within the country there are two views one pleading for its abolition and the other pleading for its retention in the statute book. In and outside the country the view expressed by the representatives of the government is that the death penalty has been retained in the country' slaws to serve the purposes of criminal and penal codes, and as a deterrent to criminals that threatened civilians and state security.

In any case, there was always resort to the supreme court. Apart from the judicial safeguards there is also the rule of Executive looking into the matter by way of appeal or a petition for mercy when the President looks into the matter and then a decision is taken whether to execute a person or not.

The controversy about treating Homosexuality as an offence
This is a controversy which is because of certain developments at the national and international levels. The developments at the level of the outside world were because of the concept of Gay Marriage and Gay rights which in certain countries had received recognition and which had become somewhat popular in India too.

The view of the supreme court was based on the letter of the law, as found in Section 377 of the Indian penal code which considered any kind of relationship outside the wedlock as illegal, more so in the case of persons belonging to the same sex.

The facts of the case and the nature of the controversy that erupted in the country may be outlined as follows:
In a jolt to lesbian, gay, bisexual and transgender, the Supreme Court Wednesday held that consensual sex between adults of the same sexual grouping is a wrongdoing. Location sideways the Delhi high court verdict of 2009, the apex court bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhayay said that

There was no legitimate room for change in Section 377 of the Indian penal code. Section 377 of IPC holds that sexual association alongside the order of the natural history is a wrongdoing. The Delhi High court by its, now set aside, decision had de criminalised the sexual association flanked by adults of the similar sexual category under segment 377.

Restore back Section 377 beneath the decree book, the court referring to the Attorney all-purpose said that rule could, if it so desired, amend the law. The apex court judgment upholding Section 377 came 21 months after it had retained its decision in March 2012.

Justification Of Punishment and Theories of Punishment

The notion of punishment as the main aim of Criminal Justice in Nigeria has been queried and criticised by scholars who believe that restorative justice pays more attention to the needs of the society, including the victim and the defendant, as well as human dignity in general.

These principles ought to guide decisions about appropriate kinds and justifications of punishments. The dominant justifications for punishment are provided by the retributive Utilitarian theory.
The four (4) theories that justify punishment are:
Deterrence - Rehabilitation - Incapacitation - Retribution / Legalized Revenge

Justification for Punishment
There are valid reasons for justification of punishment to offenders who are convicted for an offence.

They may briefly be stated as follows:
  1. Deterrence:
    Punishment dissuades a person from future wrong doing by making punishment severe enough so that the benefit or pleasure derived from the offence outweighed by the pain and probability of punishment. This justifies punishments as an aim to set an example in punishing convicted criminals to deter others. According to the 18th Century Italian philosopher, Cesare Beccaria; for deterrence to work, the punishment should be severe (unpleasant); certain: the risk of getting caught should be high; and the punishment should also be of high celerity (executed without delay).

    These three (3) conditions are still applicable today. They are based on the idea that; Humans are rational and hedonistic beings[42]. Deterrence could be general or specific. Specific deterrence aims to discourage crime by punishing offenders for their crime to convey to them that, crime does not pay, while general deterrence seeks to dissuade potential offenders by the threat of anticipated punishment from engaging in an unlawful conduct.

    This was the reasoning of the Supreme Court of New Zealand in the case of R v. Radich[43]. Deterrence has been the main purpose of punishment and still continues to be so. A practical example of general deterrence in Nigeria is the arresting and killing of Bartholomew Owoh and two others during Buhari/Idiagbon military regime for drug-related Offences, as well as the introduction of the Robbery and Firearms (Special Provisions) Act[44].

    The above position of law was supported by the Supreme Court in the case of Onuoha Kalu v. The State. The most damaging criticism of deterrence theory is that it has not reduced the incidence of crime in the society. However, whether the impact of deterrence theory is felt in the society or not, it justifies punishments in Nigeria.[45]
  2. Incapacitation:
    Incapacitation has the effect of confining the prisoner and physically incapacitating him from coming a crime. The most dangerous criminals may be sentenced to imprisonment for life or even a sentence of death may be sentenced to imprisonment for life or even a sentence of death may be invoked for heinous and brutal crimes such as murder etc.

    Punishments such as amputation, death penalty and exile served the purpose of incapacitating an offender whatever might be the crime during this period. In the case of State v. Sgt Dennis Osoleka and 7 Ors the High Court of Enugu State even refused bail to suspects of kidnapping and abduction as a result of prevalent nature of the offence of kidnapping in Nigeria, particularly, south-east. zone of the country.
  3. Restoration:
    For some minor offence's punishment may in the form of restoration such as fines or payment of compensation to the victims of crime or his/her relatives or families.
  4. Rehabilitation:
    Some Punishment are directed to reform the offender is ensure his rehabilitation as a law- abiding citizen. It aims at bringing about a change in the offender's attitude to make him socially acceptable. Advocates of this justification believe that a period of confinement would produce remorse and would make offenders repent. Rehabilitation aims at improving the offender's character so that the offender would be less inclined to commit crime (even when an opportunity arises.) Arguably, a downside of this justification is that it has shown to be based on faulty assumption that "crime is a disease‟ and that an offender can be cured of it.

Deterrent Theory
Earlier modes of punishment were, by and large, deterrent in nature. The kind of punishment presupposes infliction of severe penalties on offenders with a view to deterring them from committing crime.

The founder of this his theory of determine on the theory, Jeremy Bentham, based his theory of determine on the principle of hedonism which said that a man would be deterred from committing a crime if the punishment applied was swift, certain and severe, this theory considers punishment as an evil, but is necessary to maintain order in the society.

The deterrent theory also seeks to create some kind of fear in the mind of others by providing adequate penalty and exemplary punishment to offenders which keeps them away from criminality.

Bentham, however, believed that offenders must be provided an opportunity for reformation by the process of rehabilitation.

J. Bentham, as the founder of this theory, states:
"General prevention ought to be the chief end of punishment as its real justification. If we could consider an offence, which has been, committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only be only adding one evil to another. That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety."

Bentham's Theory was based on a hedonistic conception of man and that man as such would be deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says, If the evil of punishment exceeds the evil of the offence, the punishment will be unprofitable; he will have purchased exemption from one evil at the expense of another.

The justification often provided for the deterrent theory is that it deters the offender from committing a crime. This theory seeks to change the future by creating fear in the mind of the wrongdoer. By inflicting fear in his mind, it attempts to harmonize the interests of the wrongdoer with that of society.

Retribution / Legalized Revenge
while deterrent theory considered punishment as a means of attaining social security, the retributive theory treated it as an end in itself. It was essentially based on retributive justice which suggests that evil should be returned for evil[46] without any regard to consequences. An offender "deserves‟ to be punished because he or she has violated a rule. Immanuel Kant who is a retributivist and a leader of this theory argued that the punishment of criminals is a moral responsibility of the society and that punishment must be imposed in accordance with strict law of retribution. The rationale of retribution as a justification for punishments is as briefly described in the following sub-headings: -

The desire for vengeance which is a form of relieve for both the victim and or family (in the case where victim died), and the general public. Through this aim of punishment, the State relieves their need for vengeance and prevents the possibility of resort to private retaliation and public aggression on behalf of the victim(s).

Just desert philosophy This is to say that, the offender deserves punishment on the basis of justice and fairness. By committing a crime, an offender gained unfair advantage over all others who have restrained themselves from committing crime.

Civil / Political Obligation: All persons owe duties to others not to infringe on their rights, for one's right ends where another person's right begins.

The retributive theory of punishment, quite contrary to popular belief, is not a barbaric theory. On the contrary, it is a theory that caters to the interest of society. The theory does not advocate the infliction of punishment that is lesser in degree than the crime committed or more than it. It paves way for the infliction of a punishment that is proportional to the crime. It neither favours the criminal nor the victim. It works for the benefit of society.

The Retributive theory is based on the doctrine nulla poens sine leges and nulla peona sine crimen, which means no punishment can be imposed outside the law, and no punishment can be inflicted except for the crime committed. A lenient approach to punishment would harm the justice system. It destroys the confidence of the public in the efficacy of law. It is a neutral theory that is inclined neither towards the offender nor the victim an inefficient system of justice administration fails to command respect in the eyes of the public. It fails in the redressal of grievances. The retributive theory of punishment is not inconsistent with mercy.

Preventive Theory
Preventive philosophy of punishment is based on the proposition "not to avenge crime but to prevent it, It Presupposes that need for punishment of crime arises simply out of social necessities. In punishing a criminal, the community protects itself against anti-social acts which endanger social endanger social order in general or person or property of its members,

The real object of the penal law therefore, is to make the threat generally known rather than putting it occasionally into execution. As an off-shoot of preventive view regarding crime and criminals, the development of prison institution gained momentum

Every society desire to provide security of life and property to its citizens. Crime acts as an antithesis to this goal. The preventive theory serves a social purpose by preventing the occurrence of the crime. Unlike other theories of punishment, it strikes at the very root of the crime like a highly skilled doctor who recognizes the root cause of the problem and seeks to eradicate it.

Reformative Theory
The reformative view of penology suggest that punishment is only justiciable if it looks to the future and not to the past It should not be regarded as setting anoles account but rather as opening a new one" Thus The supporters of this view justify prisonisation not solely for the purpose of isolating criminals and eliminating them from society but to bring about a change in their mental outlook through effective measures of reformation during the term of their sentence.

Some penologists have denounced "Rehabilitative Ideal:" or the "reformist ideology" underlying individualized treatment model because in practice they are more punitive, unjust and inhumane than retribution or deterrence. Writing about the condition of prisons in Russia and France, peter Kropotkin observed, "prisons are seen as symbols of our hypocrisy regarding rehabilitation, our intolerance for deviants or our refusal to deal with the root causes of crime such as poverty, discrimination, unemployment, ignorance, over-crowding [47]

The authors Od an American study also criticised reformist ideology sating that, "it never commended more than lip Service from most of its more powerful adherents. Prison administrators who embraced the rehabilitative ideal, have done so because it increased their power over inmates".

"Deserves‟ to be punished because he or she has violated a rule. Immanuel Kant who is a retributivist and a leader of this theory argued that the punishment of criminals is a moral responsibility of the society and that punishment must be imposed in accordance with strict law of retribution.

The rationale of retribution as a justification for punishments is as briefly described in the following sub-headings:
"The desire for vengeance": which is a form of relieve for both the victim and or family (in the case where victim died), and the general public. Through this aim of punishment, the State relieves their need for vengeance and prevents the possibility of resort to private retaliation and public aggression on behalf of the victim(s).
  •  Just desert philosophy:
    This is to say that, the offender deserves punishment on the basis of justice and fairness. By committing a crime, an offender gained unfair advantage over all others who have restrained themselves from committing crime.
  • Civil / Political Obligation:
    All persons owe duties to others not to infringe on their rights, for one's right ends where another person's right begins.


The reformative theory believes in the importance of human resources. It is only in a utopian society that laws are not violated and rules are not flouted and hence, no crime is not committed. If for every crime that a criminal commit, he is put to death every nation would be left with a handful of people.

The theory diverts its attention from the crime to the dominant. There are factors like economic conditions, societal pressure, family background, education as motivating factors. The Reformative theory seeks to explore the criminal instead of the crime.

It cannot be said with accuracy that a death sentence has always persuaded society to mend its ways. Hence, it is justified that the theory seeks to reform the wrongdoer instead of terminating his life.

Modern of Penology
With new criminological development, particularly in the field of penology, it has been generally accepted that punishment must be in proportion to the gravity of the offence, It has been further suggested that reformation of criminal rather than his expulsion from society is more purposeful for his rehabilitation.

With this aim in view, the modern penologists have focused their attention on individualization of offender through treatment method, today, old barbarous methods of punishment such as mutilation, branding , hanging, stoning, flogging, amputation, starving the criminal to death or subjective him to pillory or poetic punishment, etc

Are completely abandoned, Pillory was a method of corporal punishment under which the offender was subjective to public ridicule by exposing public ridicule by exposing him to punishment in public places. Different poetic punishments were provided for different crimes.

For examples: cutting off hands for theft, taking off tongue for the offence of perjury, emasculation for rape, shaving off the head of a women in case she committed a sex- crime or whipping her in public street and similar other modes were common forms of poetic punishment during the Middle Ages, Modern penologists have substituted new forms of penal sanctions for the old methods of sentencing.

The present modes of punishment during the Middle Ages, Modern penologists have substituted new forms of penal sanctions for the old methods of sentencing. Segregation of the offender temporarily or permanently through imprisonment or internment or compensation by way of damages from the wrong-doer in case of civil injury.

The credit for introducing these penological changes goes to eminent criminologists, like Beccaria, Garofalo, Ferri, Tarde, Bentham and others who Formulated sound principle of punishment and made all out efforts to ensure rehabilitation of offenders so as to make them useful member of society once again, Garofalo strongly recommended "transportation" Or "banishment" of certain types of offenders who had to be segregated from society.

Modern Penal system, However, limit the punishment of transportation within the homeland so that potentiality of prisoners is utilised within the contrary itself. It has been generally agreed that the objective of punishment is to communicate the consequences of crime to the criminal. It must carry a message that the offender is being punishment as a response to his/her crime. The punishment must have the effect of restoring the offender to the society as a law-Abiding citizen[48].

Brief Stated, it is now well Recognised that prevention of crime and protection of society are the main objects of punishment, it therefore, follows that no single theory of punishment will serve the real purpose.

Commenting on this aspect of penal justice, Caldwell observed:
"Punishment is an art which involves the balancing of retribution, deterrence and reformation in terms not only of the court but also of the values in which it takes place and in the balancing of these purpose of punishment, first one and then the other receives emphasis as the accompanying conditions change". [49]

As rightly pointed out by the committee for Reforms in Criminal Justice System Headed by justice V.S. Malimath, "punishment must be severe enough to act as a deterrent, but not too severe to be brutal. Similarly, punishment should be moderate enough to be human, but can't be too moderate to be ineffective[50]

Not only many sorts of persons but varied conflicts and contradictions hover around the pivotal theme of existence in the society. The police who is considered to be the most devoid institution for guarding against crime, is looked upon with distrust and bias. Under the Cyber law, Information Technology Act 2000 has termed various activities as offences.

But offences under this branch of law may occur in two broad ways-first where the victim and offender are human beings but the instrumentality of crime is the computer and second, where victim, offender and the instrumentality are the internet or computer. Here, the first variety of cybercrime occurs and Indian Law i.e., I.T. Act 2000 has no operation in arresting the offender abroad. Kant is the pioneer to introduce such ethical theory.

The celebrated exponent Kant is of the view that an act is right not because of its consequences or because it does good, but because it is a particular instance of a universal law known a prior to be obligatory in all cases e.g., a particular lie is wrong not because it produces bad consequences for anybody but because it produces 204 bad. There is categorical imperative and it is part of any categorical imperative (moral law) to admit of no exceptions whatever an exception must be admitted at least to one of the two laws.
  1. Firstly, the battle against crime has continued for ages and the trend shows traits of increase and decrease.
  2. For every offence irrespective of the fact the nature of the offence for example whether it relates to woman, human body, civil servants or property, the stereotyped punishment is chalked out.
  3. There is a Habitual Offenders Act which provides certain preventive measures like keeping the where-about of such offenders, domicile visits to such offender's place of office or residence at a fixed interval of time, reporting the matter to the 1st Class Magistrate, signing of security u/s 110 CrPC 1973, etc. apart from strict punishment.

Constitutional Imperative of Punishment in India

The punishment under the Indian Legal System is found under the substantive criminal laws. These substantive criminal laws may be classified broadly into two classes - Major Criminal Acts and Minor Criminal Acts. The whole of the substantive criminal law has been legislated and so be it major or minor criminal law it is a legislation.

This shall facilitate us to understand how far punishments enumerated under the substantive laws are officious Crime is such a phenomenon which is not bereft from our lives but is inter-woven in the tissues of our society. So, under these circumstances, it is essential to understand the socio-economic causes of crime. Various thinkers in the field of sociology, psychology, philosophy, anthropology and the like have all consorted tried to define crime and explain its cause with the object of reducing such a nasty act in the society. According to Elliot and Merril crime is an anti-social behaviour which the group rejects and to which it attaches penalty.[51] "Law is good but justice is better and it is expedient in the interest of justice that the sentence passed in a case should reasonably be balanced to the exigencies of the case"[52]

v Punishment under in Modern Indian Perspective

Karl Mannheim, the great social thinker has remarked that crime is anti-social behaviour. Gillin has opined from legal point of view and has remarked that crime is an offence. From this societal point of view the Sociologist's analysis of the causes of crime areas under: -

Looking from the point of view of the criminals, it may be analysed that due to lack of control of the head of the family over its members is responsible, Crime is caused when the control of the society over its members are disrupted. In other words, anarchism in the society gives birth to a criminal, The crime rate is increased by intoxication and by the influence of alcoholism.

Due to religious superstitions, some people commit crimes such as human sacrifices looting, communal riots etc, Due to faulty education system people commit crimes as the education system does not lay emphasis on morality and character which are effective forces to check crime cause of crime.

Defective marriages end in crimes such as dowry death etc, Poverty is a leading cause of crime in the society, Unemployment is also Low development of personality like feeble minded people are either susceptible to become a criminal or a victim because in both the cases they try to make up their deficiency by condemning the society and taking revenge upon it.

The great philosopher Rafael Garafalo has also analysed the various aspects and influences of crime. The rising hike for the commission of crime may prove to be fatal even in the most developed societies. He has shown in his analysis that all social factors like Biology Psychology Sociology and Medical Science attribute their own causes of crime.

The factors as reviewed by great thinker Garafalo:
  1. Physical Environment:
    The crimes vary with geography, climate season and weather conditions. In various surveys it has been proved beyond every doubt that crimes take place less in the panes than in the hilly regions. The mountainous regions are more prone to crimes than the hilly regions.
  2. Physical and mental characteristics:
     of an individual It is not always proper to think about crimes from the point of view of the offender. Many crimes take place due to susceptibility of becoming a victim in a crime.
  3. Biological factor:
    Biological factors also play an important part. Early emergence of puberty may lead to criminal behaviour. Early physical maturity but emotional immaturity may lead to a crisis in adolescence. Some biologists also ascribe to the view that due to certain deformity of the brain or body crimes happen. The father of modern positive criminology started by Cesare Lombroso point out after measuring the size of skull and comparing the degree of sensitiveness to touch, of insane, criminals and normal persons that "Criminals were different physically from normal persons and had physical characteristics of savages and inferior animals.
  4. Environmental factors:
    The environment in which a person is brought up is of utmost importance. The environmental factor influences the intent of the person. Family cohesion is a great factor for developing the mental makeup of the person. In childhood days mother's link and affection help is framing the mental makeup of the person. Lack of family ties, broken homes, divorce separation or dissertation or voluntary break away, absence of loving mother in early childhood contribute to the increase of delinquents.
  5. Emotional factor:
    This factor is more or less related to psychological factor. Emotional upset is one of the factors which make life unhappy. Emotional upset not only tells upon the mind of a person but also creates biological disturbance. It usually results in severe repression at home, school and outside world. Shock from premature sexual experience or due to conflict arising out of natural curiosity and moral standard of the society parental misconduct, mishandling of children by elders and family members, misbehaviour from different associates all contribute to intense feeling of discomfort and disharmony which also is one of the factors of the cause of crime.
  6. Social factor:
    Social factors may be viewed to be religious factor also. The religion of any person helps in developing good moral values and the principles of ethics.
  7. Economic Factors:
    Karl Marks, has propounded his famous economic theory of crime. Economic factor also foster crime. It was shown that crime increases with economic scarcity. Economic depressions, unemployment decrease in economic class increases the probability of crime. Economic affluence lessens crime.
  8. Urbanization and industrialization:
    Urbanization and industrialization has provided a modern society with homes and comforts. But there is visibly a dark side of the society and it is for this reason that the society witnesses various criminal activities. The earliest positivist criminology which rested upon psychology and biological explanations was on its way to search for the reasons of crime and its punishment.

    Before this the psychologist Hans Eysenck (1964) had suggested that abnormal. Merton and Albert Cohen studied the American Society and unfolded the existence of contradictions in the society was the cause of crime Cohen's work published in 'Delinquent Boys" (1955) reflect that boy of lower working class who are frustrated with their position often join in-delinquent subcultures to form gangs.

    Such gangs abhor ethics and values of the middle-class family and indulge in deviant activity such as delinquency or other acts of non-conformity." Richard A. Cloward and L Lyod E. Ohllin (1960) agreed with Cohen that most delinquent youths emerge from lower working class they argue that the boys most "At Risk" are those who have internalized middle class values and been encouraged on the basis of ability to aspire towards a middle-class future.
The competitive life of the American is described as "The American Dream" which is a difficult task to achieve. For many social groups it is just a dream which never comes true. Thus, it gives rise to a disadvantageous group having limited conventional opportunities for advancement or none at all.

The 'conflict theory' propelled by Taylor, Walton and Yong in 1973 published in the" The new criminology" explained the phenomena of causation of crime from a different point of view. The theory extends to explain that a set of behaviour or rules which is definable and dominant in a person is called central or core personality. The criminals possess a well- defined personality and that their criminal tendency can be overcome by controlling or altering the core personality.

Apart from these psychological and sociological explanations of crime which greatly influences the punishment there are other social factors which cannot be overlooked. As punishment is intertwined with crime, and one cannot be made aloof the other, thus socio-economic factors also influence punishment. For example, if the fine is heavily imposed upon a pauper, then it loses its efficacy because no matter how much he is threatened, he is unable to pay the fine. In that case, his imprisonment is enhanced or in lieu of fine he is imprisoned. Thus, presently we shall confine our attention to the Socio- economic conditions existing in India.

Constitutional Imperatives of punishment in Modern India The constitution which are relevant to the subject of punishment, such as, the principles embodied in Article 20 [53](Principles relating to Criminal Justice) and the principles embodied in some other provisions of the constitution. These principles are imperatives in the sense that the authorities of the state are supposed to observe them in all that they do, whether it is law making or law enforcing. constitution (Article 13)[54] prohibits making of any law that abridges citizens' rights enumerated in part III.

The term 'state' has been defined as including the law-making institution, laws and policies implementing and enforcing institution and the adjudicating machinery founded by the state. The major repository of the constitutional principles is Part III of the constitution which has the heading 'Fundamental Rights'. But apart from the citizens' rights mentioned in part III of the constitution there are certain other principles embodied in various other provisions of the constitution like the principle of federalism, the principle of independence of judiciary, the principle of procedure established by law, the principle of fairness etc.

Principles Embodied in The Constitution
The following are the principles proclaimed in Article 20 of the constitution which are mentioned as certain protection to convicts in certain circumstances and conditions. 1) There can be no ex post facto punishment. That means the law prohibiting certain acts must be on the statute book on the day of commission of offence. 2) courts are not supposed to try any person doubly for one offence and punish doubly for same offence. 3) No one can be punished taking into account his/her self-incriminating statements obtained involuntarily (by force.)

i) The Principle of Protection against ex post facto law. The constitution of India has adopted the Doctrine of Nullum crime Sine Lege, and Nullum Poena Sine Lege in Article 20 of the constitution, which says, law prohibiting an act must precede the commission offence and the trial is the basic tenet of penology. ex post facto leniency given by legislature available on the day of judgement must be given.

This provision puts the Criminal Jurisprudence at par with the international standards in criminal justice. However, the difference in the provisions of international covenant and the constitution of India is that the constitution does not guarantee a safeguard as to the lighter punishment provided by subsequent legislation. The right against ex-post-facto law has been recognized at international level under the two international covenants viz., an international declaration of human rights and the important covenant on civil and political rights.

Art.15 of the international covenant on civil and political rights, 1966 proclaims that no one can be held guilty by any courts situated in the countries signatory and party to the covenant for any omission of duty not mentioned on the day such omission is criminalized by a valid law The constitution of India, by its Article 20(1) guarantees its people against the ex-post-facto, in the following way broadly speaking, ex-post-facto laws are which voided and punished what had been lawful when done. In Rao Shiva Bahadur v state of Vindhya Pradesh, Jagannath das,

J. said: that the principle of barring ex post fact trail and punishment is paramount. the judgment also said that creating offences retrospectively is bad in law and not in line with tenets of justice.

Art. 20 (1) bans the law-making authority of the Legislature. Ordinarily, a Legislature can make prospective as well as retrospective laws, but clause (1) of Art.20 prohibits the Legislature from making retrospective (back dated) criminal laws.

Clause 1 of article 20 of the constitution says that people shall not be punished for any offence except for violation of an existing law on the day of committing the act. People cannot be subjected to any higher penalty than that which existed on a statute book on the day of the happening of the misdemeanour or felony.

Meaning of ex-post-facto law:
An ex-post-facto law is a law which impose penalties retroactively, that is, act criminalized after the act takes place. Also, bigger quantum of punishment cannot be given which did not exist already. As, for example, suppose in 1964, a person does an act which is not then unlawful. In 1965, a law is passed making that act a criminal offence and seeking to punish that person for what he did in 1964 or, suppose, punishment prescribed for an offence in 1964 is six months, but in 1965, the punishment is increased to a year and is made applicable to the offences committed before 1965.

There is another debate currently going on in the country as to whether special courts like TADA court POTA court MCOCA court UAPA court are regular courts within the meaning on Article 21. According to one argument of legal scholars the special courts are not regular courts and therefore trial by special courts is not "due process of law.' Special courts judges have mindset that they are specially created to punish and not to acquit. Such mind set is bad as it spoils impartiality.

Even in Holy Quran which came on earth between 645-690 CE that is before 1400years there is "due process clause "In surah Al Anam chapter No.6 Verse No. 151 the Quran says "no one can be put to death except by bringing him /her before court / judge

In Satwant Singh v. Punjab[55], arose the following fact-situation. According to Sec. 420 Indian penal code, an unlimited fine can be imposed on committed an offence punishable under this provision. Later, an ordinance laid down the minimum fine which a court must inflict on a person convicted u/s 420 Indian penal code.

The supreme court held that art. 20(1) was not infringed by the ordinance because the minimum penalty fixed by it could not be said to be greater than what could be inflicted. Under the law in force at the time he committed the offence. Under Art. 20, all that has to be considered is whether the ex-post-facto law imposes a penalty greater than that, which might be inflicted under the law in force at the time commission of the offence.

In Ratan Lal v. state of Punjab,[56] the accused, a boy of 16 years was found guilty of having committed house trespass and having tried to outrage the modesty of a girl aged 7 years. The magistrate awarded him rigorous imprisonment for six months and also imposed fine. The accused appealed to the Addl. Sessions judge, then to the high court in revision, without taking the plea that he might be given the benefit of the probation of offenders Act, 1958, which came into force after the magistrate has given his judgment.

The majority opinion obviously reiterated the rule of the laws of punishment did not fall with the prohibition of art. 20 (1) Thus, the accused can take advantage of the beneficial provisions of the ex-post-facto law. When Central law Amendment Act (Food Adulteration) creates new offences or enhances punishment for a particular type of offence, no person can be convicted by such ex-post facto law nor can the punishment be enhanced taking support of y amendment; but when ex post fact law reduces the punishment for an offence punishable under s. 16(1)(a) of the Act, there is no impediment for getting the reduction of punishment proclaimed by amended law which is also ex post facto.
  1. The courts do not review the validity of Pre-constitution laws, under Article13(1) of the constitution because the constitution itself does not have retrospective operation. In Keshava Madhava Menon v. state of Bombay the supreme court[57] held that Article 13 (1) has no retrospective effect but is wholly prospective in operation and that if the behaviour which was legally wrong at that moment , was done before the commencement of the constitution, in contravention of the provision of any law, which after the constitution became void with respect to the exercise of fundamental rights, the inconsistent law is not upheld out retrospectively so as to make the act not an offence.
  2. Bachan Sing vs St. of Punjab and others [58]"As sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that making the choice of punishment or for ascertaining the existence or absence of 'special reasons' in that context, the court must pay due regard both to the crime and the criminal.

    What is the relative weight to be given to the aggravating and mitigating factors depends on the facts and circumstances of the particular case More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them.

    This is so because 'style is the man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character, the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. And it is only when the culpability assumes the proportion of extreme depravity that 'special reasons' can legitimately be said to exist.'
  3. In Srinivas Ayyer v. Saraswati Ammal [59]the petitioners who were to be prosecuted for the offence of Bigamy had raised the question of the validity of the Madras Hindu (Bigamy prevention and Divorce) Act, 1949 as offending Articles 14, 15, and 25 of the Act. The Madras High court held that Article 13(1) has no retrospective effect to wholly prospective in operation.
(ii) The Rule Against Double Jeopardy Article 20 (2) of our constitution says that nobody can be prosecuted and punished for the same offence twice or more times'. This clause embodies the common law rule of nemo debetvisvexari which means that no man should be put twice in period for the same offence. If he is prosecuted again for the same offence for which he has already been prosecuted he can take complete defence of his former acquittal or conviction. No person shall be vexed twice is a rule guaranteed under Article 20(2) of Indian constitution and also sec. 300 of cr. p.c.

The word 'prosecution' as used with the word 'punishment' embodies the following essentials for the application of double jeopardy rule.

They are:
  1. The person should have been charged with culpability The word 'offence' as defined in General Clauses Act means 'any commission or avoidance label ed as crime would invite punishment'.
  2. The proceeding or the prosecution must have taken place before a 'court' or 'judicial tribunal'.
  3. The person must have been prosecuted and punished in the previous proceeding;
  4. The offence must be the same for which he was prosecuted and punished in the previous proceedings.
In Maqbool Hussain v. state of Bombay the appellant had brought some gold into India. He did not declare that he had brought gold with him to the customs authorities on the airport. The customs authorities confiscated the gold under the Sea Customs Act. He was later on charged for having committed an offence under the Foreign Exchange Regulations Act. The appellant contended that the second prosecution was in violation of article 20 (2) as it was for the same offence.

In Venkataraman v. union of India[60], the appellant was dismissed from service as a result of an inquiry under the public service Enquiry Act, 1960 after the proceedings were held before the Enquiry commissioner. Later on, he was prosecuted for having committed the offence under the Indian penal code and the prevention of corruption act the court held that the proceedings taken against the appellant before the enquiry commissioner did not amount to a pro section for an offence.

The Rule against Self Incrimination
Clause 3 of Article 20 vociferously ordains that no accused individual shall be forced to criminalize self by giving statement against self. Thus, Article 20 (3) is equivalent to the general tenets of understanding that self-incrimination is bad and immorality is attached to it. Self-incrimination is totally unjust, unethical politically most oppressive thing. Article 20(3) is against self-incrimination but still continues as a mode of criminal justice.

Another point is application of Section 10 of the evidence act in which one of the conspirators if makes some admission leading to confession about conspiracy then his confession would entangle the remaining two or three automatically.

The Fundamental Rule of Criminal Jurisprudence against self-incrimination has been raised to a rule of constitutional law in Article 20 (3). The guarantee extends to any person accused of an offence and prohibits all kinds of compulsions to make him a witness against himself. Explaining the scope of this clause in M. P. Sharma v. Satish Chandra the supreme court observed that this right embodies the following essentials: (1) It is a right pertaining to a person who is charged with a crime (2) It is a protection against 'compulsion to be a witness'

The Guarantee in Art. 20(3) is against the compulsion 'to be a witness'. 'To be a witness' means making of oral or written statements in a court or out of court by a person accused of an offence. What is an incriminatory statement in relation to Art.20 (3) or Sec. 161(2) criminal procedure code., the supreme court in Nandini Sathpathy v. P.L.Dani case [61]in which Nandini Satpathy former chief Minister of Odisha was being forced by Police to answer a question naire which aimed at implicating her in charges of corruption. Nadini Satpathy knocked the doors of the supreme court.

Principles Formulated By the courts through its interpretation of relevant Laws
Protection to life and personal Liberty, In India, the scope of the important right in relation to life and liberty has received a wider interpretation by the courts. In Maneka Gandhi v. union of India, the supreme court had appointed a constitution Bench comprising seven judges. Viz. M. Hamidullah Beg, Chandrachud Y.V., Bhagwati P.N., Krishna Ayer V.R., Untwalia N.L., Fazal Ali S.M., Kailasam P.S.

While interpreting the concept of "Liberty" in Article 21 the majority judges widened the ambit of liberty enshrined in Article 21 saying that liberty includes freedom of locomotion and travel within the country as well travel abroad. The Majority judges said the liberty in Article 21 [62]comprises of freedoms given in article 19 plus the myriad remaining freedoms not mentioned in Article 19.

The Right to in relation of the information of being arrested
Article 3 of the declaration of human rights has provided that every human being has the right of survival and right to personal freedoms. Every human being has right to human dignity and while he is taken in to custody by any government agency his family members must be informed of his /her whereabouts.

� Right against Illegal Arrest and Detention

In Public Interest Litigation writ petition D.K. Basu and Ashok K. Johari v. state of West Bengal 1996 the supreme court laid down certain basic 'requirements' to be followed in all cases of arrest or detention till legal provisions are made in that behalf as a measure to prevent custodial deaths and custodial violence

Right against Detention beyond Twenty-Four Hours
According to the provisions of Article 22 of the constitution a person arrested or detained in custody by police would have to be taken to magistrate within full two days (24hours) to validate detention by a judicial authority. This is not a proper and enough safeguard and it does not insulate police from doing excesses.

Malegaon Bomb Blast accused Pragya Singh Thakur who has been in jail as under-trial for last five years has been telling the press that she was arrested much before the actual entry made in station diary but entry was made much later

The right to Consult a lawyer
Article 22(1) of the constitution says, "No person who is arrested shall be detained in custody without being informed as soon as may not be of the grounds of such arrest, nor shall he be denied the right to consult and to be defended by a legal practitioner of his choice.

The right to Legal aid:
Article 14 of the universal convention 1966 about presumption of innocence until completion of trial. No one can be presumed guilty as soon as accused and charged of a crime. Before adjudication and conviction nobody can be presumed guilty. The covenant. further tells that legal assistance has to be provided to any person who does not have or cannot appoint his own lawyer to defend him.

Right to Speedy Trial:
Article 9, Clause 3 of the international covenant on civil & political rights, 1966 says, the person detained has to be taken to magistrate and the trial has to be started immediately. In spite of such law made by courts the adjudication sloths.

Punishment In Modern
Time generally is a kind of power by the officers and institutions of state, and in certain cases by private agencies, by which certain harmful and undesirable consequences maybe imposed on a person for any objectionable conduct.

Briefly stated, it is now well recognized that prevention of crime and protection of society are the main objects of punishment. It therefore, follows that no single theory of punishment will serve the real purpose. Commenting on this aspect of penal justice, Caldwell observed.
"Punishment is an art which involves the balancing of retribution, deterrence and reformation in terms not only of the Court but also of the values in which it takes place and in the balancing of these purpose of punishments, first one and then the others receive emphasis the accompanying conditions change.

The modern Penological thinking favours rationalization of punishment by taking into consideration the various approaches in their proper perspectives and making use of them to suit the given situation and requirement of the offender in accordance with the principle of individualization.

Enrico Ferri was yet another Italian penologist who supported positive school of criminology. He asserted the punishment was necessary for the protection of society because crimes in society are inevitable. In his opinion, punishment was a social deterrent. This in his view was in the best interest of the inmates as well as the state.

Recommendation and Conclusion
After a long discussion on matters of justifiability of punishment, let us in brief recollect the priority zones which require special mention in order to sum up and forward certain suggestive steps.

Firstly, law is not devoid from human life and society. So, we must be first abreast with the conflicts and contradictions within the society. It requires many sorts of persons to make this world. It is extremely difficult and dangerous to chalk out a single principle to guide the whole society because human beings are not all alike.

Again, it is most endangered and impossible task to evolve different principles to rule different people or differentiation which would in other words be violation of natural justice. The police who is considered to be the most devoid institution for guarding against crime, is looked upon with distrust and bias. against the commoners.

Moreover, the long-drawn procedure of enquiry, interrogation, arrest, detention allows the offender escape stringent suffering of pain which again reduces the efficacy of the system of punishment. Moreover, though the police belong to the executive organ of the Government but too much interference of other executives in the affairs of the police retards the healthy independent activities of the police.

Now-a- days we often hear the term "Criminalization of politics" which is an endangered problem faced by the police force. This problem deeply enrooted in party politics system of to-day India has a cancerous rapid growth which has infected even the police department. The democratic system of independence of each and every department has faded in the dark and has disturbed the peace and trans quality of public life.

The shadow of malpractices in politics has not spared the police department from which ultimately has eroded moral values and social responsibility. Social conflicts have reached its zenith by the introduction of electronic worldwide media. The introduction of the internet has herald in various unthinkable contradictions which do not fit into the present system of administration of criminal justice.

Under the Cyber law, Information Technology Act 2000 has termed various activities as offences. But offences under this branch of law may occur in two broad ways-first where the victim and offender are human beings but the instrumentality of crime is the computer and second, where victim, offender and the instrumentality is the internet or computer.

Moreover, there is a jurisdictional problem because the concept of internet is world- wide. So, a person sitting abroad may commit a crime upon a victim of India through the computer. Here, the first variety of cybercrime occurs and Indian Law i.e., I.T. Act 2000 has no operation in arresting the offender abroad. In the second case mentioned above the offender cannot be traced because all these necessary parties are the computer.

So, though for the sake of criminal justice system the Cyber Law is enacted but it is very difficult to stop the occurrence of such crimes which are no less growing in number. There are also other white-collar offences which involve skill and expertise which are outside the ambit of the present system to be combated. The next conflict and contradiction is of the society which tells upon the justice system, is the growing unrest of anti-social activities which become so great and stubborn that they take the shape of terrorism.
  1. The lengthy procedure engulfed under the criminal procedure code must be made completely abridged because the delayed procedure is indirectly an indulgence to the offender. He breaths an air of relief after the time of reporting of the case, at least five years before his case comes up for trial. Speaking for the legislations, there is created a dictomy in the laws.

    The same subject is dealt in IPC as well as a Special Law is frame. For example, bribery of Government officials S161 IPC provides the offence of bribery and the legislation Prevention of Corruption Act 1988 also provides the same. Similarly, the subject matter of S372 IPC which is illegal Trafficking in Women and Children is also the subject matter of Immoral Traffic Prevention Act 1956 as amended in 1986.

    Subjects like food adulteration laws, pollution of air and water laws, nuisance, defamation, rape etc. are all contained under two or more legislations. The penal provisions of these laws vary and so not only that there is disparity in the implementation of the law but 218 variances have characterized legislations itself.
  2. For every offence irrespective of the fact the nature of the offence for example whether it relates to woman, human body, civil servants or property, the stereotyped punishment is chalked out. Offences concerning property or defamation need not be provided imprisonment, instead heavy fine more than the value of the property should be imposed.
  • Barnes & Teeters: New Horizons in criminology, (3rd Ed.) p. 2162.
  • Beni Prasad, Theory of Government in Ancient India, Allahabad Law Agency, Allahabad, (1974), p. 89.
  • M. Rama Jois, Ancient Indian Law Eternal Values in Manu Smriti, Universal Law Publishing, New Delhi, (2004), p. 86
  • Bryant W. Seaman, "Islamic Law and Modern Government: Saudi Arabia Supplements the Sharia to Regulate Development", Columbia Journal of Transnational Law, 1979, p. 417
  • R. K. Wilson," An Introduction to the Study of Anglo-Mohamedan Law," Thacker, London, (1894), p. 16.
  • Matthew Lippman, Sean Mc Conville and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction, Praeger, New York, (1988), p.9
  • Abdullahi Ahmed An-naim, Towards an Islamic Reformation: Civil Liberties, Human Rights and International Law, Syracuse University Press, Syracuse, New York, (1990), pp. 29-30.
  • Fitzgerald, Mohammedan Law, Oxford University Press, London, (1931), pp. 3-8
  • B. S. Jain, Administration of Justice in Seventeenth Century India, Metropolitan Book Co., New Delhi, (1970), p. 57.
  • In Keshava Madhava Menon v. state of Bombay the supreme court
  • (1980), Cr. J636 taken from Tandon, M.P. Criminal Procedure CodeReprint1992 Allahabad Law Agency
  • In Srinivas Ayyer v. Saraswati Ammal
  1. Barnes & Teeters: New Horizons in criminology, (3rd Ed.) p. 2162.
  2. AIR 1968 SC 683
  3. Beni Prasad, Theory of Government in Ancient India, Allahabad Law Agency, Allahabad, (1974), p. 89.
  4. M. Rama Jois, Ancient Indian Law Eternal Values in Manu Smriti, Universal Law Publishing, New Delhi, (2004), p. 86
  5. Supra Note 3, pp. 18-19.
  6. Supra Note 15, pp. 29-30 [14]
  7. Bryant W. Seaman, "Islamic Law and Modern Government: Saudi Arabia Supplements the Sharia to Regulate Development", Columbia Journal of Transnational Law, 1979, p. 417
  8. R. K. Wilson," An Introduction to the Study of Anglo-Mohamedan Law," Thacker, London, (1894), p. 16.
  9. Matthew Lippman, Sean Mc Conville and Mordechai Yerushalmi, Islamic Criminal Law and Procedure: An Introduction, Praeger, New York, (1988), p.9
  10. Abdullahi Ahmed An-naim, Towards an Islamic Reformation: Civil Liberties, Human Rights and International Law, Syracuse University Press, Syracuse, New York, (1990), pp. 29-30.
  11. Fitzgerald, Mohammedan Law, Oxford University Press, London, (1931), pp. 3-8
  12. B. S. Jain, Administration of Justice in Seventeenth Century India, Metropolitan Book Co., New Delhi, (1970), p. 57.
  13. Retrieved from <> last visited on January 19, 2014 at 12:33 IST.
  14. Montgomery W. Watt, Islamic Political Thought, Edinburgh University, Edinburgh, (1968), p. 5.
  15. Letters from Warren Hastings to the Government at Fort William, dated July 1773. Quoted in Tapas Kumar Banerjee, Background to Indian Criminal Law, R. Cambray and Co. Pvt, Ltd., Calcutta, (1990), pp.38-48
  16. Sam S. Souryal, Abdullah I. Alobied and Dennis W. Potts, "The Penalty of Hand Amputation for Theft in Islamic Justice", Journal of Criminal Justice, 1994, pp. 249-265
  17. Osman abd-el-Malak-al-Salch, "The Rights of the Individual to Personal Security in Islam". In M. CherifBassiouni (ed.)," The Islamic Criminal Justice System, Oceana, New York," (1982), p. 60
  18. Keith, Speeches and Documents on Indian Policy 1750-192, Oxford University Press, London, (1922), p. 65. Also see, a letter of Warren Hastings to Lord Mansfield dated March 21, 1774
  19. Retrieved from last visited on May 20, 2012 at 20:10 IST.
  20. Supra Note 51, p. vii
  21. N. V. Paranjape, Indian Legal and Constitutional History, Central Law Publications, Allahabad, (1996), p. 5
  22. Supra Note 30, (1894), p. 30
  23. S. K. Puri, Indian Legal and Constitutional History, Allahabad Law Agency, Allahabad, (2003), p. 18
  24. Supra Note 3, p. 10
  25. S. Suparkar, Law, Procedure and Justice in Ancient India, Deep and Deep Publications, New Delhi, (1986), p.10
  26. J. K. Mittal, India Legal History, Central Law Agency, Allahabad, (1985), p. 11. 1. Studies in Hegalian Cosmology p.133, cited by Ewing A.C. The Morality of Punishment pp.73-752. 2. Sir Walter Moberly: The Ethics of Punishment (1968 Ed.), p. 14
  27. Reza Afshari, On Historiography of Human Rights Reflections on Paul Gordon Lauren's The Evolution of International Human Rights: Visions Seen, 29 Hum. Rts. Q. 1 2007, p.10.
  28. Ibid
  29. Ibid.
  30. Ibid
  31. Gerry Simpson, The Great Powers, Sovereign Equality and the Making of the United Nations Charter, 21 Aust. YBIL 133 2000.
  32. C. John Colombos, The United Nations Charter, 1 Int'l L.Q. 20 1947
  33. Ibid. at p. 136.
  34. Ibid. Article 92.
  35. Michael Kirby, supra note 5, at p. 29.
  36. The Charter of the United Nations 1945, Article 93.
  37. Ibid. Article 96.
  38. Francesco Francioni, An International Bill of Rights: Why It Matters, How It Can Be Used, 32 Tex. Int'l L. J. 475 1997.
  39. Zehra F. Kabasakal Arat, Forging A Global Culture of Human Rights: Origins and Prospects of the International Bill of Rights, Hum. Rts. Q., Vol. 28, No. 2 (May, 2006), pp. 416-437.
  40. Hurst Hannum, The Status of the Universal Declaration of Human Rights In National and International Law, 25 Ga. J. Int'l & Comp. L. 287 1995-1996
  41. V. S. Mani, supra note 27, at p. 47.
  42. Deterrence theory
  43. 1954 NZLR 86 (more recently in R v AEM [2002] NSWCCA)
  44. Cap. 398 L.F.N 1990
  45. This position is likely to change given the promulgation of the Administration of Criminal Justice Act in 2015 which diverts the main aim of criminal justice from punishment to restorative justice
  46. Sen. P, K.: Penology Old and New (1943), p. 27.
  47. Kamenka &Brown: Ideas and Ideologies Law and Society. P.112
  48. R.A. Duff: punishment, Communication & Community, pp. 48-52.
  49. 36.Caldwell: criminology p. 403
  50. Justice Malimath committee Report on criminal Justice Reforms. Para 14.2 (2004)
  51. Madhab Harswadanrao Haskot vs. St. of Maharashtra (1978 Cr.L.J.1678: AIR 1978 SC 1548)
  52. Gopal Khaitans vs. The State [AIR 1960 Cal 132 at p.138]
  53. Article 20 of Indian Constitution
  54. Article 13 of Indian Constitution
  55. Satwant Singh v. Punjab
  56. Ratan Lal v. state of Punjab
  57. In Keshava Madhava Menon v. state of Bombay the supreme court
  58. (1980), Cr. J636 taken from Tandon, M.P. Criminal Procedure CodeReprint1992 Allahabad Law Agency
  59. In Srinivas Ayyer v. Saraswati Ammal
  60. Venkataraman v. union of India
  61. Nandini Sathpathy v. P.L.Dani case
  62. Article 21 of Indian Constitution
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