Penology and victimology notes

Penology and victimology notes

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Penology meaning nature and scope

Penology

Criminal science is classified into 3 parts:
 Criminology
 Penology
 Victimology

Criminology– study of crime and criminal behaviour

Penology– It is firstly coined by Auguste Forel in his book “ The science of crime
and punishment” in 1885.

Victimology– It basically focuses on seeking justice for victims who are facing
multiple problems after a crime.

Meaning-

The term “penology” comes from the word “punishment or penalty.
” Penology is a branch of criminology dealing with prison management and the treatment of offenders.

Penology is the discipline of criminology that studies punishment and the
management of criminally convicted individuals. It includes sentencing, jail,
probation, parole, and other kinds of punishment and rehabilitation in theory and practice.

Definition –
 Penology is the study of punishment in relation with crime. It is science which deals with the principles and methods of punishments. So it is about theories and methods of punishment for criminal acts. Dr P.K. Sen defines it,
‘penology lay down the fundamental principles that should guide the state, or the sovereign authority in framing the schemes of punishments.

 The Oxford English Dictionary defines penology as “the study of the punishment of crime and prison management”

Types of Penology
Penology encompasses various theories and approaches, each focusing on different aspects of criminal justice and punishment, with main branches including:

1. Retributive Penology: Retributive penology focuses on the idea of punishment as retribution or revenge for the harm caused by the offender. It emphasizes the moral and philosophical aspects of justice, with punishment seen as a way to balance the scales and satisfy society’s demand for justice.

2.Rehabilitative Penology: This approach emphasizes the rehabilitation of
offenders rather than punishment for its own sake. It sees criminal behavior as a result of social, psychological, or environmental factors, and aims to address these root causes to reintegrate offenders into society.

3.Restorative Justice: Restorative justice is an alternative approach that
emphasizes repairing the harm caused by the offense and involving both victims and offenders in the resolution process. It seeks to heal relationships and reintegrate offenders into the community.

4.Critical Penology: Critical penology takes a critical and often sociological
perspective on the criminal justice system. It examines the power dynamics,
inequalities, and social structures that contribute to crime and punishment, and advocates for systemic changes to address these issues.

5.Comparative Penology: Comparative penology involves the study of different
penal systems and practices in various countries. It aims to understand how
different approaches to punishment and criminal justice impact crime rates,
recidivism, and social outcomes.

Objective of Penology
Penology focuses on effective methods for punishment, rehabilitation, and crime prevention in the criminal justice system. Its main goals are:

1.*Punishment*: Set fair and appropriate punishments that fit the seriousness of the crime.
2.*Rehabilitation*: Help offenders change by addressing issues like addiction and lack of education.
3.*Deterrence*: Discourage crime by making the consequences clear, using the
fear of punishment.
4.*Restitution and Restoration*: Repair harm caused by crime through victim
compensation and reintegration of offenders.

5.*Prevention*: Stop future crimes by tackling root issues like poverty and social inequality, often through community programs.
6.*Human Rights and Fairness*: Ensure the justice system respects human
rights and provides fair treatment.
7.*Cost Efficiency*: Find cost-effective ways to achieve goals and use resources wisely.
8.*Public Safety*: Improve safety by reducing crime rates and helping offenders not to reoffend.

Difference Between Penology and Criminology:

Penology and criminology are two different areas of study within the criminal justice system.

*Criminology* studies crime and criminal behavior. It looks at what causes crime,the effects of crime, and patterns in criminal activity. Criminologists examine social,psychological, and environmental factors that lead to crime.

Their goal is to understand why crime happens and how to prevent it.

*Penology* focuses on punishment and the penal system. This field looks at how offenders are treated within the justice system, including prisons, rehabilitation programs, and punishment methods. P

enologists study how effective punishment is instopping crime, helping offenders change, and keeping the public safe.

In summary, criminology tries to understand the reasons for crime and how to reduce it, while penology looks at how to manage punishment and rehabilitation for offenders. Criminologists work to prevent crime, and penologists aim to improve the justice system’s response to crime.

Concept of punishment
Introduction 

Punishing those who do wrong is as old as wrongdoing itself and is a fundamental part of society. Throughout history, people have agreed on what behaviors are good and acceptable. However, some actions can hurt or offend others in the group.

To keep order and ensure survival, societies need to address these wrongdoings. This means that people will break laws and customs, and they should face consequences for their actions.

Meaning of punishment

“Punishment is justice for the unjust”. Punishment is the penalty for the transgression of the law. punishment is any damage for pain inflicted on an offender through judicial procedure. punishment is a process by which the state in flicks some pain to the person or property of a person who is found guilty of a crime.

The term punishment means torture that a person should undergo on account of doing
a wrong. punishment is synonyms with penalty and liability and punishment is connected with crimes of highest grade

Definition

The Blacks Law Dictionary defines Punishment in criminal law as- Any pain,penalty, suffering or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court, for some crime or offense committed by him, or for his omission of a duty enjoined by law.

The Oxford Dictionary defines punishment -as to “make an offender suffer for an offence”
.
Thomas Hobbes defines punishment as “an evil afflicted by a public authority on him that has done or omitted that which is adjudged by the same authority to be a transgression of the law; to the end that the will of men may thereby be disposed to
obedience”
Punishment is thus the penalties imposed by the State on individuals, who violate the criminal law. It is the deliberate infliction of physical harm on an offender or his property without his consent because he is an offender but for reasons other than self- defence. Society defines the offences and prescribes punishment for them.

The kindsof punishment given are surely influenced by the kind of society one lives in. During ancient period punishment was more severe as fear was taken as the prime instrument in preventing crime .In criminal law, punishment is allowed due to the wrongful intent involved in the crime, the law does not really punish the individual but punishes the guilty mind.

Elements of punishment
According to H.L.A. Hart, punishment has five elements:
 It must be imposed by an authority constituted by the legal system
 It must be administered by human beings other than the offender
 It must be for an offense against legal rules
 It must involve pain or other consequence that is normally considered unpleasant
 It must be imposed on an actual or supposed offender for their offense

Objectives of Punishment
1. Deterrence: Protect society from harmful individuals by discouraging potential
offenders from committing crimes.

2. Prevention: Prevent actual offenders from committing further crimes.
3. Reform: Address societal issues by rehabilitating criminals and transforming them
into law-abiding citizens.
4. Administration of Justice: Deliver justice by imposing penalties to discourage
criminal behavior while also focusing on the reform of offenders.
5. Rule Maintenance: Uphold laws and regulations to foster a crime-free society.

Types of Punishment

In Ancient India
The penal system in ancient India was harsh and brutal. This severe punishment
approach led to a lower rate of crime. The types of punishments include:

Capital Punishment
Capital punishment refers to the legally sanctioned execution of an individual as a
penalty for a crime, commonly understood as the death penalty. In ancient times,
capital punishment could be imposed for relatively minor offenses.

This represents the most severe form of punishment, and the methods of execution have                                                                                             varied throughout history.

Corporal Punishment
Corporal punishment is intended to cause physical pain. It involves inflicting pain on
the body as a penalty for breaking the law. The goal is to punish the offender and
deter them and others from committing the same crime again.

Social Punishment
Social punishment restricts a person’s ability to make contracts or to interact with
others. It may involve moving them to places where they can’t connect with anyone
who might help them.

Financial Punishment
Financial punishment, or fines, is a common way to penalize smaller offences, like
traffic violations or minor crimes. It may also involve compensating the victims of a
crime and covering legal costs.

In Modern India
Many societies still use some ancient punishments, but they have mostly evolved to
be less harsh. Now, the severity of punishment depends on the crime. Serious crimes
can lead to harsher penalties.

In industrialized societies, punishments often include
fines and prison time. The goal is to correct bad behavior rather than just punish
offenders.

According to Section 53 of the Indian Penal Code, the main punishments are:
Capital Punishment (Death Penalty)
In modern times, capital punishment is given for severe offenses and is a topic of
much debate. It is reserved for the most serious crimes, unlike in ancient times when
it was used for minor offenses. It’s applied only in the “rarest of rare cases.
”
Jagmohan Singh v. State of Uttar Pradesh (1973)

 Issue: Whether the imposition of the death penalty under the Indian Penal
Code (IPC) is constitutionally valid.

 Ruling: The Supreme Court upheld the constitutionality of the death penalty
under the IPC. It held that the death penalty could be imposed in the “rarest of
rare” cases, but the decision of the court should be based on the circumstances
and nature of the crime.

This case established the framework for when the
death penalty could be imposed.

Certain crimes that may receive the death penalty include:
– Waging war against India (Section 121)
– Abetting mutiny (Section 132)
– Giving false evidence leading to wrongful death (Section 194)
– Murder (Section 302)
– Murder committed by a life convict (Section 303)
– Abetting the suicide of a minor or an incapable person (Section 305)
– Attempted murder by a life convict (Section 307)
– Kidnapping for ransom (Section 364A)
– Dacoity with murder (Section 396)

After the Criminal Law (Amendment) Act of 2013, the following offenses may also
lead to the death penalty:
– Rape resulting in death or permanent vegetative state (Section 376A)
– Repeat offenders of rape (Section 376E)

Life Imprisonment
Life imprisonment means a person will stay in jail for their entire life. This serves as
an alternative to the death penalty for some offenses. A term of life imprisonment
usually means a minimum of 20 years, according to Section 57 of the Indian Penal
Code.

Imprisonment
Imprisonment means putting someone in jail as a punishment. There are three types of
imprisonment:
– Rigorous Imprisonment: This involves hard labor. Offenders must do physical
work in jail, like grinding corn or digging.
– Simple Imprisonment: In this case, offenders are confined to jail but do not have to
do labour unless they choose to work for pay.
– Solitary Confinement: This means isolating a person from others

Theories of punishment

Introduction

Punishment is a critical aspect of criminal law. Every society implements social control through specific laws and corresponding deterrents. Punishment serves as a consequence for the wrongdoer’s actions. The primary aim of punishment is to
provide relief to the aggrieved party and ensure law and order within society.

The theory of punishment deals with the principles on the basis of which punishment is to be given to the offender, with the object of safeguarding a society deprived of law and order. There are four types of theories of punishment.

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

Retribution theory
Retribution means something done or given to somebody as punishment or vengeance. It is just retribution for their crime. This theory says to return the same injury to theculprit or wrongdoer, which he had committed against the victim. It says ‘tit for tat’ . It
is often assimilated revenge, but a public rather than an act of private revenge.

This theory punishes culprits because they are deserving of it. It says to offenders that ‘you have caused harm or damage to society, now you should have to pay it back to society.

Preventive theory
This theory aims to prevent crime rather than take revenge. This theory is also called the disablement theory. Preventive theory penalizes the wrongdoer, to stop future crime in the society, by separating the criminals from society. This theory believes that the aim of punishment is restraint.

If a criminal is confined, executed, otherwise incapacitated, such punishment will deny the criminal ability or opportunity to commit further crimes and prevent the society from that harm.

In the case of Sunil Batra v. Delhi Administration (1978), the court of law observed that if the prisoner is violent or dangerous, solitary confinement is necessary to prevent and segregate these offenders from society, thereby abiding by the retributive theory of punishment.

Deterrent theory
Deterrent theory aims to stop unwanted actions by making people afraid of the consequences. It seeks to discourage specific behaviors by providing warnings or restrictions. “Deter” means to stop someone from taking action, and various factors can keep people from doing wrong. In general, those who understand the risks aremore likely to avoid negative actions.

In the case of the State of H.P. v. Nirmala Devi (2017), the court of law had opined  that if the crime done is heinous and serious against society then the deterrent theory becomes more relevant, for those guilty will be punished to deter other prospective offenders.

Reformative theory
This theory helps reform criminals and turn them into law-abiding citizens. No one is born a criminal; crimes can happen by accident or in certain situations. Offenders should have another chance to correct their mistakes. Correctional homes, juvenile homes, training schools, and reformatories offer this opportunity.

The main goal of this theory is to rehabilitate inmates. It was the case of Dharambir v. State of Uttar Pradesh (1979), which became the initiation of the concept of open jails in India which generally helps in reforming
young offenders.

Expiatory Theory
This theory focuses on conscience-oriented cleansing of hearts through repentance, compunction, atonement, and reparation. The antithesis to the belief that, if a wrongdoer repents his wrongful deeds wholeheartedly, he deserves to be forgiven and let off, Expiatory Theory relies on the principle, “To pay for the sin committed” .

It favours that a wrongdoer must be punished for inflicting pain or causing any sort of loss to another person. Expiatory forms of punishment favour economical and compensatory forms of punishment. It dialogues compensation to be provided to the victim by the accused, instead of perpetrating physical pain as punishment to the latter.

Capital punishment in India

Introduction

Punishment is an important part of our society. It helps enforce the law and maintain order. In the past, there were no clear laws, and the king decided how severely to punish crimes.
Today, modern ideas about punishment allow the state to manage our rights and keep law and order.

Punishments can include fines, imprisonment, or even the death penalty, which is
the most severe punishment we have now. ‘Capital punishment’ , also known as the ‘death penalty’ , is the harshest or most severe punishment of the present time.

Capital punishment

The term ‘capital’ is derived from the Latin word ‘capitalis’ , which means concerning the head. Thus, to be subjected to capital punishment means to lose one’s head. Capital punishment, also known as the death penalty, is the execution of a criminal who has been sentenced to death by a court of law for a serious felony.

It is known as the most severe form of punishment. It serves as punishment for the most heinous, grievous, and abhorrent crimes against humanity.

The purpose of the death penalty is to deter people from doing something by instilling fear in them about the consequences. The death penalty is only applied to crimes that fall under the ‘rarest of rare doctrine. ’

History of the death penalty in India

To be more structured, the history of the death penalty in India is divided into the following four headings:

 Ancient India and the Concept of Punishment
In ancient India, punishment was closely tied to keeping society orderly and fair. Early texts, like the Dharmaśāstras and the Arthashastra, mentioned the death penalty for serious crimes like murder and treason.

The Manusmriti, one of the oldest law books, said that the death penalty was needed to maintain social harmony. The author, Manu, believed that harsh punishments were necessary to prevent people from committing serious crimes.

People in ancient India thought punishment served as revenge and was important for
protecting society from those who caused harm. They also believed it could prevent others from committing crimes. The idea of Dand Niti, or “justice through punishment,
” was a key part of their legal beliefs.

 Death penalty under the Hindu law

Since the beginning of human history, punishment has been essential to society. The death penalty and exile have removed individuals who threaten community safety. Ancient Hindu texts mention the death penalty as an accepted punishment.

Stories like the Ramayana and Mahabharata emphasize that a king must keep society safe, sometimes requiring execution. Thinkers such as Katyayana and Brahaspati supported the death penalty.

Even during the Buddha’s time, Emperor Ashoka saw the death penalty as fair. The
principles of Dand Niti suggested that punishment helps prevent crime. Manu Smriti and Kautilya’s writings also recognize the death penalty as necessary for public safety.

 Death penalty under Muslim law

Islamic rule in India during the medieval period significantly changed the legal system by introducing Sharia law. This law, based on the Quran and Hadith, set rules for capital punishment for serious crimes. These crimes are known as Hadd and Qisas, which includes retribution.

Capital punishment was limited to specific offenses such as murder, theft, apostasy, and rebellion. The Mughal Empire, which ruled from the 16th to 19th century, varied in its application of the death penalty. Emperor Akbar was lenient, often favoring imprisonment instead, while Emperor Aurangzeb enforced stricter punishments under Sharia law.

 Death penalty in pre and post-independence era

The death penalty was not discussed in the British India legislative assembly until 1931, when Shri Gaya Prasad Singh from Bihar proposed a bill to abolish it for certain crimes.
However, the motion was defeated after the Home Minister spoke against it. Sir John Thorne, the Home Minister, stated that the government did not think it wise to repeal the death penalty for any crime.

After independence, India kept many colonial laws, including the Indian Penal Code of 1860, which still listed the death penalty among six punishments.

Crimes punishable by the death penalty under The Indian Penal Code, 1860

In India, several serious crimes can lead to the death penalty.

Waging war against the country is one such crime. Under Section 121 of the Indian Penal Code (IPC), anyone who tries to wage war against India can be sentenced to death.

Supporting mutiny is another punishable offense. Section 132 of the IPC states that those who aid in a mutiny within the armed forces can face the death penalty.

Fabricating evidence to secure a death sentence is also a crime. Section 194 of the IPC allows for the death penalty in these cases.

Murder, as laid out in Section 302, is punishable by death.

Assisting a minor or an intellectually disabled person in suicide can lead to the death penalty under Section 305.

Kidnapping for ransom or harm falls under Section 364A and is likewise punishable by
death.

Additional offenses added by the Criminal Law (Amendment) Act of 2013 include:

– Rape resulting in death or a permanent vegetative state (Section 376A).
– Repeat rape offenders (Section 376E).
– Dacoity with murder (Section 396).

Groups Exempt from the Death Penalty in India

1. Minors: People under 18 cannot receive the death penalty because they can change with support. The Juvenile Justice Act (2015) addresses cases for minors.
2. Pregnant Women: Pregnant women are safe from the death penalty. If a woman on death row is pregnant, her execution can be delayed or changed to life imprisonment to protect the unborn child.
3. Intellectually Disabled: People with intellectual disabilities may be exempt if they don’t understand their actions. The law focuses on rehabilitation rather than punishment for them.

Execution Procedure in India

1. Hanging: The only method of execution for civilians in India is hanging, as stated in the Code of Criminal Procedure.
2. Shooting: In military cases, shooting can be used. A firing squad executes this method, and it is allowed only for members of the Army, Air Force, and Navy under the Army Act of 1950.

Constitutional validity of capital punishment

Article 21 of the Constitution guarantees the right to life and personal liberty, but this right is not absolute. The state can limit or take away this right to maintain law and order.

In Maneka Gandhi v. Union of India (1978), the court stated that if the state takes a person’s life, it must follow fair and unbiased procedures. The death penalty is reserved for the most serious crimes.

The issue of capital punishment has been debated in India for years, but lawmakers have not decided whether to keep or abolish it. India focuses on changing criminals’ behavior rather than just punishing them and is one of 78 countries that still have the death penalty, which is applied under strict conditions like ‘rarest of the rare’ cases.

The constitutionality of the death penalty has faced challenges. In Jagmohan Singh v. State of Uttar Pradesh (1973), it was argued that the death penalty violated the right to life under Article 21 of the Indian Constitution. 

The Supreme Court ruled that the death penalty is constitutional and does not violate any part of the Constitution. The court also stated that the choice between the death penalty and life imprisonment considered all relevant facts and the nature of the crime.

The “rarest of rare” doctrine was established by the Bacchan Singh v. State of Punjab (1980) case. The Supreme Court ruled, with a 4 to 1 majority, that the death penalty is constitutional but should only be applied in the most serious cases. 

While life imprisonment is the standard punishment, the Court did not define what “rarest of rare” means.

In the case of Mithu v. State of Punjab (1983), it was determined that the death penalty under Section 303 IPC is unconstitutional because it infringes on the safeguards enumerated in Articles 14 and 21 of the Constitution. As a result, it was omitted from the Indian Penal Code.

The “rarest of rare” doctrine came from the Bacchan Singh v. State of Punjab (1980) case. 

The Supreme Court ruled that the death penalty is legal but should only apply in extreme cases. In Macchi Singh & Others v. State of Punjab (1983), the Court stated that the death penalty should be used when the community expects it.

Key conditions include:
1. The murder must be extremely brutal, causing community outrage.
2. The crime involves bride burning or dowry death.
3. The crime is very serious.
4. A Scheduled Caste member is murdered, sparking significant upset.
5. The victim is an innocent child, vulnerable woman, or someone elderly or sick.

In Santosh Kumar Satishbhushan v. State of Maharashtra (2009), the Supreme Court
reinforced that life imprisonment is the standard punishment, while the death penalty is an exception.