Penology Treatment of Offenders Notes | LL.M. Semester 3 | Mumbai University | munotes

The vocabulary this book uses

Every one of these words is used throughout the book, and a reader who is not sure of one of them will lose the thread of a whole chapter. They are defined here once.

Offence. An act or omission which the law punishes. In India the general list is in the Bharatiya Nyaya Sanhita 2023, and there are many special statutes besides.

Offender. A person who has been convicted of an offence. Before conviction the correct word is accused. A person awaiting trial is not an offender and this book never calls them one.

Conviction. The court's finding that the accused committed the offence charged.

Sentence. The punishment the court awards after conviction. Conviction and sentence are two separate decisions, taken at two separate stages, and confusing them is the commonest beginner's error in this subject.

Custody. Lawful detention of a person by the state. It covers police custody before trial, judicial custody during trial, and imprisonment after conviction, and the legal position differs in each.

Undertrial prisoner. A person held in prison while their trial is pending. They have not been convicted of anything, and the majority of the people in an Indian prison are in this position.

Convict. A person serving a sentence of imprisonment after conviction.

Remission. The reduction of a sentence, either by the government under statute or by earning it under the prison rules. A remitted sentence is shortened; the conviction stands.

Commutation. The substitution of a lighter kind of punishment for a heavier one, for example life imprisonment in place of death. The sentence changes in kind, not merely in length.

Pardon. The complete wiping out of the sentence and its consequences by the President or a Governor. It is not a court's power at all.

Parole and furlough. Temporary release of a serving prisoner, on conditions, without the sentence itself being shortened. They are explained in [Parole and Furlough in India].

Probation. Release of a convicted offender into the community on a bond of good conduct instead of sending them to prison. It is dealt with in [Probation: the Idea] and the chapters after it.

Recidivist. A person who offends again after having been convicted before. Also called a habitual offender, though the two words are not exactly the same and the difference is explained in [The Recidivist and the Habitual Offender].

Correctional administration. The whole apparatus of prisons, probation, after-care and juvenile institutions through which a sentence is actually carried out.

A worked example

Ramesh, aged nineteen, is convicted by a Magistrate in Mumbai of theft of a mobile telephone worth twelve thousand rupees. It is his first offence. He has a job and lives with his widowed mother.

The question a criminal lawyer asks is whether the prosecution proved the theft. That question is now closed. He was convicted.

The question penology asks begins here. Should Ramesh go to prison? For how long? If he goes, he will meet men convicted of far worse, he will lose his job, and his mother will lose her income. If he does not go, has the law done anything at all about the theft? Should he be fined instead, and if he cannot pay, does the fine simply become imprisonment by another route? Should he be released on a bond of good conduct under the Probation of Offenders Act 1958, and if so, who will supervise him and what happens if he offends again?

Every one of those questions has an answer in this book, and none of them has anything to do with whether he took the telephone.

Penology is not a soft subject

A common misconception is that penology is the humane, sympathetic wing of criminal law, concerned with being kind to prisoners. It is not.

Penology includes the argument for the death penalty as well as the argument against it. It includes the case for deterrence through severity as well as the evidence that severity does not deter. It includes the question of what the community is owed and what the victim is owed, not only what the offender is owed. A student who treats it as a plea for leniency will write one-sided answers and will be unable to argue the other side when the examiner asks for a critical examination.

What is NOT penology

It is not criminology. Criminology asks why people commit crime. Penology asks what should be done once they have. The two are related and this book uses criminology's findings, but the questions are different. See [Penology, Criminology and Criminal Law].

It is not criminal law. Criminal law defines offences and their maximum punishments. Penology asks whether those punishments are the right ones and how the choice between them should be made.

It is not criminal procedure, though it borrows from it. Procedure tells you how a trial is conducted. Penology is concerned with the sentencing stage, and only with the parts of procedure that decide the sentence and its execution.

The Indian setting, in one paragraph

Indian penal law changed fundamentally on 1 July 2024, and a book written before that date is now wrong about its most basic material. The Indian Penal Code 1860 was repealed and replaced by the Bharatiya Nyaya Sanhita 2023. The Code of Criminal Procedure 1973 was repealed and replaced by the Bharatiya Nagarik Suraksha Sanhita 2023. Punishment is now governed by Chapter II of the Sanhita, sections 4 to 13, and sentencing procedure by its companion. The general law of prisons, however, is still the Prisons Act 1894, which is older than most of the buildings it governs. That contrast, a brand new penal code and a Victorian prison statute, is the single most useful thing to know about Indian penology.

Quick revision

• Penology is the study of the punishment of crime and the treatment of the offender. From Latin poena, punishment, and Greek logos, study.
• Four parts: the justification of punishment, the forms of punishment, the process of sentencing, and the treatment of the offender.
• Conviction and sentence are separate decisions. Penology is about the second.
• Criminology asks why crime happens; penology asks what to do about the offender; criminal law defines the offence.
• Punishment in India is now governed by Chapter II of the Bharatiya Nyaya Sanhita 2023, in force from 1 July 2024. Prisons are still governed by the Prisons Act 1894.
• Penology is not a plea for leniency. It contains both sides of every argument in it.

Test yourself

1. Define penology in one sentence. Penology is the branch of the criminal sciences which studies the punishment of crime, its justification, its forms, the process by which it is imposed, and the treatment and correction of the offender.

2. A friend says that penology and criminology are the same thing. What is your answer? They are different questions about the same subject. Criminology asks why a person committed a crime, using sociology, psychology and statistics. Penology asks what the state should do once the crime is proved, and is concerned with punishment, sentencing and correction. Criminology's findings are used by penology, for example in deciding whether an offender is likely to reoffend, but the disciplines are distinct.

3. Why does this book say that conviction and sentence are two decisions? Because they are taken at different stages, on different material, and by different standards. Conviction is a finding of fact reached on evidence beyond reasonable doubt. Sentence is a discretionary judgment about what should be done with the convicted person, taken after they have been heard on the question of sentence, and it takes into account matters that were irrelevant at the trial, such as the offender's age, background and prospects.

4. Name the statute that now governs punishment in India, and the one it replaced. The Bharatiya Nyaya Sanhita 2023, in force from 1 July 2024, which replaced the Indian Penal Code 1860. The kinds of punishment are listed in section 4 of the Sanhita, which replaced section 53 of the Code.

5. Why is it wrong to call an undertrial prisoner an offender? Because they have not been convicted. An undertrial is presumed innocent, is in prison only because bail was refused or could not be furnished, and may be acquitted. Using the word offender for such a person assumes the answer to the very question the trial exists to decide.

3. Who decides, and how?

This is sentencing. A statute that says an offence is punishable with imprisonment which may extend to seven years, or with fine, or with both, has left almost everything to the judge. Penology studies how that discretion is or should be structured: what circumstances aggravate, what mitigate, whether guidelines help, whether disparity between judges is tolerable, and what appellate control there is.

India is a particularly interesting case, because it has almost no sentencing policy at all, as [India Without a Sentencing Policy] shows.

4. What happens to the person afterwards?

This is correctional administration, and it is the half of the subject the paper's own title names: treatment of offenders. It covers the prison and its rules, the rights the prisoner retains, classification, work, discipline, remission, parole, release and after-care, and the separate system for juveniles.

It is also where the answer to the first question is tested. A state that says it punishes in order to reform, and then runs prisons in which nobody is reformed, has an inconsistency that penology exists to expose.

A fifth thing, which is really a method

Underneath all four questions runs an evaluative habit: does it work?

Penology is unusual among law subjects in caring about evidence. Whether the death penalty deters, whether long sentences reduce reoffending, whether open prisons produce more escapes, whether probation is followed by fewer further convictions: these are empirical questions with empirical answers, and the discipline is supposed to look at the answers rather than to assert what feels right.

This is where most examination answers are weakest and where marks are easiest to gain. A candidate who writes that deterrence works because fear of punishment prevents crime has asserted. A candidate who writes that the evidence consistently shows the certainty of detection matters more than the severity of the sentence has answered.

The scope drawn as a table

What the scope excludes

Three things are commonly written into an answer on the scope of penology and do not belong there.

The definition of particular offences. Whether an act amounts to culpable homicide or to murder is a question of criminal law. Penology begins after that question is answered.

The causes of crime. That is criminology. It is relevant to penology because a sentence aimed at reform has to know what it is reforming, but the study of causation is not itself within the scope of penology.

The law of evidence and proof. How a fact is proved is not a penological question. What follows once it is proved, is.

A worked example of the scope in action

The state proposes a law making a second conviction for drunken driving punishable with a mandatory minimum of one year's imprisonment. Take the four questions in order.

Why punish? The proposal is openly deterrent. A mandatory minimum exists to send a message to a class of potential offenders, not to fit the sentence to the individual.

What may be inflicted? Imprisonment is one of the punishments section 4 of the Sanhita allows, so the proposal is within the list. Community service, also on the list since 2024, would be an alternative worth arguing for.

Who decides and how? A mandatory minimum removes the judge's discretion for this offence. Penology asks whether that is a gain in consistency or a loss of the ability to do justice in the individual case. The Supreme Court's treatment of mandatory sentences is in [Mithu and the Mandatory Death Sentence].

What happens next? A year in an Indian prison for a person with a job and no previous conviction of any seriousness. Will they be classified separately from habitual offenders? Will they lose their employment and therefore their capacity to pay a fine or maintain a family? Would a suspended sentence plus a licence disqualification achieve more?

Does it work? The evidence on mandatory minimum sentences for drink driving is mixed and depends heavily on enforcement. Penology's contribution is to insist that the question be asked before the law is passed.

That single hypothetical touches every part of the scope, which is why a question about scope is best answered with an example rather than a list.

Quick revision

• Scope of penology: justification of punishment, forms of punishment, sentencing, correctional administration and treatment of the offender, and evaluation of whether punishment achieves its aims.
• Remember it as four questions: why punish, what may be inflicted, who decides and how, and what happens afterwards.
• Section 4 of the Bharatiya Nyaya Sanhita 2023 fixes the list of permissible punishments in India.
• Excluded: the definition of offences, the causes of crime, and the law of proof.
• The evaluative habit runs through the whole subject. Assertions about deterrence are worth fewer marks than evidence about it.

Test yourself

1. State the scope of penology in a sentence you could write under time pressure. Penology covers the justification of punishment, the forms punishment may take, the principles and process of sentencing, the administration of penal and correctional institutions and the treatment of the offender, together with the evaluation of whether punishment achieves its aims.

2. Give three things that are outside the scope of penology and say which discipline owns each. The definition of offences, which belongs to substantive criminal law; the causes of criminal behaviour, which belongs to criminology; and the law of evidence and proof, which belongs to the law of evidence and to criminal procedure.

3. Which of the four questions does an argument about abolishing the death penalty really belong to? Primarily the first, why punish at all, because the argument is at bottom about which theory of punishment the law should serve. It also touches the second, since the question is whether death should remain on the list of permissible punishments, and the third, because much of the Indian argument is about the unevenness of the sentencing discretion.

4. Why is the evaluative question treated as part of the scope rather than as an optional extra? Because every justification of punishment makes an empirical claim. Deterrence claims that punishment prevents crime; reformation claims that treatment changes offenders. If those claims are false, the justifications built on them fail. A discipline that refused to test them would be arguing about the merits of a machine without ever asking whether it runs.

A worked example

Two men are convicted of the same offence on the same day before the same judge: house-breaking by night. The first is twenty, has no previous conviction and stole to pay a medical bill. The second is forty-two, has six previous convictions for the same offence and lives by it.

Criminal law treats them identically up to the moment of conviction. The offence is the same, the ingredients are the same, and the maximum punishment fixed by statute is the same for both.

Criminology explains why they are different. The first fits the pattern of situational, need-driven offending which very often stops by itself. The second fits the pattern of a criminal career, in which offending is an occupation.

Penology decides what follows. The first is a candidate for release on probation under section 4 of the Probation of Offenders Act 1958, and section 6 of that Act would have required the court to record reasons before imprisoning him at all if he were under twenty one. The second is a candidate for the provisions on repeat offenders, and probation is almost certainly inappropriate for him.

The same facts, three different disciplines, three different jobs. That example answers the whole question and takes four sentences.

The place of the criminal sciences

Some writers use the phrase criminal science or criminal sciences for the whole field, and divide it into three: criminal law, criminology and penology. Others treat penology as a branch of criminology rather than as its equal, on the ground that the study of punishment is part of the study of crime.

That second view is defensible but it is not the one MU's syllabus takes, and it is not the one this book takes. The syllabus makes penology a paper in its own right with its own four modules, and the reason is sound: the questions penology asks are normative as well as empirical. Whether the death penalty deters is a criminological question. Whether the state ought to have it even if it does deter is not, and no amount of data will answer it.

What is NOT the distinction

It is not that criminology is scientific and penology is not. Both use evidence. The difference is in the question, not in the rigour.

It is not that criminal law is about the offence and penology about the offender. Criminal law is very much about the offender too: intention, knowledge, capacity and the general exceptions are all about the state of mind of the person accused. The difference is the stage: criminal law is concerned with the offender in order to decide guilt, penology in order to decide treatment.

It is not chronological in a simple way. Criminology does not stop at the moment of conviction. Studies of prison subculture, of the effect of imprisonment on reoffending, and of what happens to a released prisoner are criminological work done wholly inside penology's territory.

Victimology, the fourth member

A modern answer should mention victimology, the study of the victim of crime, their treatment by the criminal process, and their compensation. It sits between criminology and penology and has become part of Indian sentencing law: section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 empowers a court to order compensation to the victim, and section 396 requires every state to have a victim compensation scheme. That is dealt with in [Compensation to the Victim].

Quick revision

• Criminal law: what is an offence and what punishment is permitted. Normative, before and during trial.
• Criminology: why crime happens. Empirical, social science.
• Penology: what to do with the offender and whether it works. Both normative and empirical, after conviction.
• The overlap is real and should be stated: criminology supplies penology with predictions, penology supplies criminal law with policy, criminal law limits what penology may recommend.
• Victimology is the fourth member and is now written into Indian sentencing law by sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita 2023.
• In the exam, do not answer a penology question with a criminology answer.

Test yourself

1. Distinguish penology from criminology in two sentences. Criminology is an empirical social science which studies the causes, extent and distribution of crime and the behaviour of those who commit it. Penology studies what the state should do with a person once the crime is proved, covering the justification of punishment, its forms, sentencing and the treatment of the offender.

2. Give one Indian statutory provision that shows criminology being used inside penology. Section 4 of the Probation of Offenders Act 1958 permits a court to release an offender on a bond of good conduct having regard to the circumstances of the case, including the nature of the offence and the character of the offender, and provides that the court may call for a report from a probation officer. The report is criminological material collected for a penological decision.

3. A student writes that penology is simply a branch of criminology. Is that view arguable? It is arguable and some writers hold it, on the ground that punishment is part of society's response to crime and is therefore within the study of crime. The objection is that penology asks normative questions which no empirical finding can settle, such as whether the state is entitled to take a life even if doing so would save others. MU's syllabus treats penology as a discipline of its own, and this book follows it.

4. Where does victimology fit? Between criminology and penology. It studies the victim, their treatment by the criminal process and their compensation. It has entered Indian penology through the compensation provisions, sections 395 to 397 of the Bharatiya Nagarik Suraksha Sanhita 2023, and through the restorative approach to punishment.

It is imposed after a determination of guilt by a proper procedure. Under the Constitution of India that requirement has constitutional force. Article 21 provides that no person shall be deprived of his life or personal liberty except according to procedure established by law, and Article 20(1) forbids conviction for an act that was not an offence when it was committed, and the infliction of a penalty greater than that which could have been inflicted under the law in force at the time.

Why the state does it, in a paragraph

Punishment is the state's answer to a problem it created for itself. When the state took over the settlement of wrongs from the injured family, it removed the right of private vengeance, and having removed it, it had to supply something in its place. Everything about the modern law of punishment follows from that exchange: the state punishes because it has forbidden the victim to. This is developed in [Why the State Alone Punishes].

A worked example

Four measures, all imposed by the state of Maharashtra on the same afternoon.

A magistrate sentences Anil to six months' rigorous imprisonment for causing hurt. Punishment. It is a hardship, imposed for an offence, on the offender, by a competent authority, after conviction.

A collector requires the residents of a village to pay a collective fine under section 10A of the Protection of Civil Rights Act 1955 after an untouchability offence. Punishment in form, and controversial precisely because the third element is missing: it falls on inhabitants who did not themselves commit the offence.

A district magistrate detains Bilal under a preventive detention law because he is likely to commit an offence. Not punishment. There is no offence and no conviction. It is a preventive administrative measure, and the constitutional protections that apply to it are those in Article 22 rather than those that attach to a sentence.

A municipal authority demolishes an unauthorised structure. Not punishment. It is the enforcement of a regulatory obligation, whatever it feels like to the owner. If demolition is ordered because the owner committed an offence, and in order to make them suffer for it, then it is punishment imposed by a body that has no power to punish, and it is unlawful for that reason.

Punishment distinguished

What punishment is NOT

It is not revenge. Revenge is personal, unlimited, and needs no authority. Punishment is impersonal, limited by law, and requires it. The retributive theory, which says that the offender deserves to suffer, is sometimes mistaken for a theory of revenge, and the difference is explained in [The Retributive Theory].

It is not treatment. A measure aimed only at curing the person, imposed for their own benefit, is not punishment even if they experience it as one. The reformative theory tries to make punishment do the work of treatment, and the difficulty of that is one of the standing arguments in this subject.

It is not conviction. The conviction is the finding that the offence was committed. The punishment is what follows. A person may be convicted and released on probation without any sentence being passed, which is exactly what section 4 of the Probation of Offenders Act 1958 provides for.

It is not always imprisonment. Section 4 of the Bharatiya Nyaya Sanhita 2023 lists six punishments, and imprisonment is only one of them.

Limits on what may be inflicted

Indian law does not permit any suffering the state chooses. Four limits are constitutional or statutory and every one of them is examinable.

Only the punishments the law lists. Section 4 of the Bharatiya Nyaya Sanhita 2023 is exhaustive for offences under the Sanhita.

Not retrospectively increased. Article 20(1) of the Constitution.

Not twice for the same offence. Article 20(2), and section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023.

Not by a procedure that is arbitrary, unfair or unreasonable. Article 21 as it has been read since the Supreme Court held that the procedure established by law must be just, fair and reasonable. That reading is what allowed the whole of the prisoners' rights jurisprudence in Module IV.

Quick revision

• Punishment is the authoritative infliction of hardship on an offender, for an offence, by a competent authority, after a determination of guilt by a proper procedure.
• Five elements: hardship, for an offence, on the offender, by authority, after due process.
• Distinguish from preventive detention, compensation, regulatory measures, revenge and treatment.
• Article 20(1) forbids retrospective punishment; Article 20(2) forbids double punishment; Article 21 requires a fair procedure.
• Section 4 of the Bharatiya Nyaya Sanhita 2023 is the exhaustive list of punishments for offences under it.
• Collective fine is the standing exception to the requirement that punishment fall on the offender.

Test yourself

1. Define punishment. Punishment is the authoritative infliction of a deprivation or hardship upon a person for an offence against a legal rule, imposed by an authority constituted by the legal system against which the offence was committed, following a determination of guilt by a proper procedure.

2. A person is detained for a year under a preventive detention law. Is that punishment? Give reasons. No. Punishment requires an offence and a determination of guilt, and preventive detention involves neither: it is imposed because of what the person is thought likely to do, not because of what they have been found to have done. It is an administrative measure, and the protections that apply are those in Article 22 rather than those that attach to a sentence.

3. Why is collective fine difficult to fit into the definition? Because it fails the requirement that punishment fall on the offender. Section 10A of the Protection of Civil Rights Act 1955 allows the State Government to impose a fine on the inhabitants of an area concerned in, abetting or harbouring an offence, or failing to help discover the offender, and to apportion it among them. It is therefore justified, if at all, on the footing that the inhabitants have themselves failed in a duty, and not on the footing that they committed the offence.

4. Name and state the two constitutional limits in Article 20 that bear directly on punishment. Article 20(1): no person shall be convicted of any offence except for the violation of a law in force at the time of the act, nor subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the offence. Article 20(2): no person shall be prosecuted and punished for the same offence more than once.

5. Is a convicted person who is released on probation punished? Not in the ordinary sense. Under section 4 of the Probation of Offenders Act 1958 the court records the conviction but releases the offender on a bond of good conduct instead of sentencing them, so no punishment is imposed. The conviction and the conditions of the bond are real consequences, and section 12 of the Act expressly removes the disqualification that would otherwise attach to the conviction, which shows that Parliament regarded the position as different from that of a sentenced offender.

4. It must be intentionally administered by human beings other than the offender.

Two ideas are packed in. First, the suffering must be intended, not merely a foreseeable consequence: a person who loses their job because their trial was reported in the newspaper has suffered, and has not been punished. Second, it cannot be self-inflicted: penance and remorse are not punishment, however painful, which is the central difficulty of the expiation theory dealt with in [The Expiation Theory].

5. It must be imposed and administered by an authority constituted by the legal system against which the offence is committed.

This is the authority condition, and it separates punishment from lynching. It also excludes punishment by an authority acting outside its powers: a prison superintendent who invents a punishment the Prisons Act 1894 does not allow is not punishing, he is committing an assault.

Hart called cases that fail one or more of these conditions substandard or secondary cases of punishment. That is a useful phrase in an answer: collective fine is a secondary case, not a non-case, and saying so is more accurate than saying it is not punishment at all.

A worked example

Kavita is convicted of criminal breach of trust by a Sessions Court in Pune and sentenced to two years' rigorous imprisonment and a fine of one lakh rupees. Test the five conditions.

Unpleasant consequences: loss of liberty for two years and loss of a lakh of rupees. Satisfied.

For an offence against legal rules: criminal breach of trust is an offence under the Bharatiya Nyaya Sanhita 2023. Satisfied.

Of an actual or supposed offender for her offence: she was convicted after trial. Satisfied.

Intentionally administered by others: the sentence was passed by a judge and will be executed by the prison administration. Satisfied.

By a competent authority of the system offended against: a Sessions Court under section 22 of the Bharatiya Nagarik Suraksha Sanhita 2023 may pass any sentence authorised by law. Satisfied.

Now change one fact at a time.

If Kavita's employer, discovering the breach of trust, locked her in a room for two years, conditions one to three are satisfied and conditions four and five fail. That is wrongful confinement, an offence in itself.

If the state detained her for two years because it feared she would commit a breach of trust, condition two and condition three fail. That is preventive detention.

If a court fined her village a lakh of rupees because she had committed the offence, condition three fails. That is collective punishment.

What beginners get wrong here

They treat the five conditions as a definition of a good punishment. They are not. They are a definition of punishment. A grossly disproportionate sentence satisfies all five and is still a bad punishment. Whether it is a justified punishment is the separate question the theories answer.

They think condition three excludes punishing the innocent. It does not. It says the state must act because it believes the person offended. A wrongful conviction is a punishment, and a very serious wrong, and the two statements are consistent.

They forget that the conditions are cumulative. All five must hold. It is not enough that most of them do.

Quick revision

• Five conditions, from H. L. A. Hart: unpleasant consequences; for an offence against legal rules; of an actual or supposed offender for their offence; intentionally administered by others; by an authority of the legal system offended against.
• Failing one makes a case substandard or secondary, not necessarily a non-case.
• Preventive detention fails conditions two and three.
• Collective fine fails condition three.
• Penance and remorse fail condition four.
• A lynching fails condition five.
• The conditions define punishment, not good punishment. Justification is a separate question.

Test yourself

1. List the five conditions. Pain or other normally unpleasant consequences; for an offence against legal rules; of an actual or supposed offender for their offence; intentionally administered by human beings other than the offender; and imposed and administered by an authority constituted by the legal system against which the offence is committed.

2. Which condition does preventive detention fail, and why does that matter constitutionally? It fails the second and third: there is no offence and therefore no offender. It matters because the constitutional protections in Article 20 attach to conviction and punishment, so they do not control preventive detention, which is instead governed by Article 22 and the statute under which it is ordered.

3. A prisoner is beaten by a warder for insolence. Is that punishment? It fails the fifth condition. The Prisons Act 1894 lists in section 46 the punishments a Superintendent may award for a prison-offence and a beating by a warder is not among them, so the warder is acting outside any authority the legal system has given him. It is an assault, and a custodial one, which is why the safeguards discussed in [Custodial Violence and Custodial Death] exist.

4. Explain why remorse is not punishment. Because it fails the fourth condition. Punishment must be intentionally administered by human beings other than the offender. Remorse is self-inflicted and nobody imposes it, so however painful it is, it lies outside the concept. This is the difficulty at the centre of the expiation theory, which treats self-imposed atonement as if it did the work of punishment.

The traces survive. Compounding of offences, under section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, is composition: for a defined list of offences the victim may settle and the settlement has the effect of an acquittal, and for another list the settlement needs the court's permission. Compensation to the victim under section 395 is the state acknowledging that in taking the wrong for itself it took something from the victim.

What the state gave up in exchange

This is the part most answers omit and it is where the marks are.

The victim lost the remedy. For most of the twentieth century the Indian criminal process treated the victim as a source of evidence and nothing more. They had no right to be heard on sentence, no right to compensation as of course, and often no information about what became of the case.

The correction has been recent and partial. Sections 395 to 397 of the Bharatiya Nagarik Suraksha Sanhita 2023 now provide for compensation by the offender, for a victim compensation scheme funded by the state where no offender is convicted or the compensation is inadequate, and for the treatment of victims. Restorative approaches, dealt with in [Compensation and the Restorative Approach], are an attempt to go further.

The community lost the argument. Where a village once decided what a wrong deserved, a judge in a distant court now does. That is a real gain in impartiality and a real loss in the sense that justice was done by and for the people affected, and it is the standing complaint against the criminal justice system in every country that has one.

The constitutional position in India

Article 21. No person shall be deprived of his life or personal liberty except according to procedure established by law. Read together with the requirement that the procedure be just, fair and reasonable, this makes every deprivation of liberty that is not authorised by a valid law unlawful, whoever inflicts it.

Article 20(1). Nobody may be convicted except for the violation of a law in force at the time, nor subjected to a penalty greater than that which might have been inflicted under the law then in force.

Article 20(2). Nobody may be prosecuted and punished for the same offence more than once.

Article 21 again, and the prison. The monopoly of punishment does not stop at the prison gate. Whatever the state may do inside a prison it may do only under law, and this is the foundation of everything in Module IV. The Supreme Court's prisoners' rights decisions all rest on the proposition that the state's authority over a prisoner is a legal authority with legal limits, not a possession.

A worked example

A woman is molested in a Mumbai suburb. Her neighbours catch the man and beat him.

What the neighbours think they are doing is punishing him for the offence, on behalf of the victim and the locality.

What the law says they have done is commit an offence themselves, because the fifth of the marks of a punishment described in [The Five Marks of a Punishment] is missing. No authority constituted by the legal system imposed it, and no determination of guilt preceded it.

What follows. The molestation must still be prosecuted, and its prosecution is not affected by the beating. The neighbours are separately liable. And if the police stood by, the state has failed in the very duty that justifies its monopoly: having forbidden the victim to act, it owes her an effective process instead.

That last sentence is the whole argument in one line, and it is what an answer on this topic should end with.

What beginners get wrong

They think the monopoly is only about who administers the penalty. It is about who determines guilt as well. The reason the state's monopoly is defensible is that it comes with a trial, and a state that punished without one would have the monopoly without the justification.

They think compounding contradicts the monopoly. It does not. Compounding is permitted by statute, for a list of offences the state has chosen, and often only with the court's leave. It is the state deciding that for some wrongs the victim's settlement is enough, which is an exercise of the monopoly rather than a surrender of it.

They confuse the monopoly of punishment with a monopoly of force. The law permits private force in defined situations, most obviously in private defence and in an arrest by a private person. What it does not permit is force inflicted as punishment.

Quick revision

• The state punishes because it removed the victim's right of private vengeance, and having removed it, must supply a remedy in its place.
• The four defects of private vengeance: partiality, no limit, no finality, and dependence on the avenger's strength. They correspond to the four virtues of a public trial.
• Historical stages: blood feud, composition, the king's peace, public prosecution.
• Surviving traces of composition: compounding of offences under section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, and compensation under sections 395 to 397.
• Constitutional entrenchment: Articles 20(1), 20(2) and 21.
• The monopoly continues inside the prison, which is the premise of the whole of Module IV.

Test yourself

1. Why is punishment a monopoly of the state? Because the state suppressed private vengeance. Vengeance by the injured party is partial in determining guilt, unlimited in measure, self-perpetuating because it provokes counter-vengeance, and available only to those strong enough to exact it. The state's monopoly answers all four defects by supplying an impartial tribunal, a proportionate penalty fixed by law, finality, and equality of protection.

2. Give two provisions of Indian law that are the surviving trace of composition. Section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, which permits the compounding of listed offences by the person injured, in some cases with the court's permission, the compounding having the effect of an acquittal. And sections 395 and 396, which provide for compensation to the victim by the offender and through a state funded victim compensation scheme.

3. What did the victim lose when the state took the wrong for itself, and what has been done about it? The victim lost the remedy and became a witness in the state's case. The corrections are recent and partial: statutory compensation, the victim compensation scheme, the right to be informed and to be heard at certain stages, and the growth of restorative approaches to sentencing.

4. Does the state's monopoly extend into the prison? Yes, and it is the foundation of prisoners' rights. Whatever is done to a prisoner must be authorised by law, because Article 21 forbids any deprivation of life or personal liberty otherwise than according to a procedure established by law. A prison officer who inflicts a punishment the Prisons Act 1894 does not authorise is acting unlawfully, not exercising the state's power.

It is bodily. Punishment reaches the offender through their body because there is no institutional apparatus capable of reaching them any other way.

It is savage and ineffective. Eighteenth century England had over two hundred capital offences, and crime did not fall. The gap between the severity of the law and its results is what produced the reform movement.

The eighteenth century reform movement

This is the hinge of the whole history and it should be named in any answer.

Cesare Beccaria, in his essay on crimes and punishments of 1764, argued that the certainty of punishment deters more than its severity, that punishment should be proportionate to the harm done to society, that it should be prompt, and that torture and the death penalty should be abolished. Almost every modern principle of sentencing is in that book.

Jeremy Bentham built the utilitarian account: punishment is itself an evil and is justified only by the greater evil it prevents, so it must be no more than is necessary. His writing on the calculation of penalties is the ancestor of the modern deterrent theory, treated in [The Deterrent Theory].

John Howard, whose survey of English prisons in 1777 described the filth, the fees charged to prisoners, the mixing of the tried and the untried, and the gaol fever, made prison reform a public question for the first time. Every prison inspection regime in the common law world, including the visiting arrangements in the Prisons Act 1894, descends from his work.

The birth of the prison

By the early nineteenth century imprisonment had become the standard punishment for serious crime in Europe and America. Three models competed.

The separate or Pennsylvania system. Each prisoner in solitude, in a single cell, with work and a Bible, on the theory that solitude produces penitence. Hence "penitentiary". It produced a great deal of insanity.

The silent or Auburn system. Prisoners worked together by day and slept apart by night, and were forbidden to speak at any time. It was cheaper and it survived longer.

The mark system and the ticket of leave. Alexander Maconochie, on Norfolk Island in the 1840s, replaced fixed sentences with a system in which a prisoner earned marks by labour and good conduct and was released when they had earned enough. Walter Crofton developed it in Ireland into a graded progression from strict confinement through an intermediate stage to conditional release under supervision.

That is the ancestor of three things on this syllabus: the remission system, the open prison, and parole. A student who can trace the line from Maconochie to section 473 of the Bharatiya Nagarik Suraksha Sanhita 2023 has understood the module.

India under the Company and the Crown

Transportation. The Bengal Regulations provided for transportation across the sea, and from 1858 the Andaman Islands became the penal settlement. Transportation as a punishment survived in the Indian Penal Code until 1955, when it was replaced by imprisonment for life.

Macaulay's Prison Discipline Committee, 1836. It reported in 1838, condemned the indiscipline and corruption of the existing jails, rejected reformation as an object, and recommended rigorous imprisonment and central prisons. Its refusal of reformation set the tone for a century.

The Prisons Act 1894. Still the operative general statute, and the subject of [The Prisons Act 1894: the Scheme]. It is an Act about custody, discipline and health, and the word reformation does not appear in it.

The Indian Jails Committee 1919 to 1920. The first official body to say that the reformation of the prisoner was a proper object of prison administration, and the first to recommend separate treatment for juveniles and the appointment of trained staff. The whole history after independence is the story of that recommendation being repeated and not implemented, which is traced in [Prison Reform Since 1947].

The twentieth century movements

Probation. The idea of releasing a convicted offender under supervision instead of imprisoning them begins in Massachusetts in the 1840s and reaches England in 1907. India's first general statute is the Probation of Offenders Act 1958.

The juvenile jurisdiction. The separation of children from the adult criminal process, beginning with the Children Acts of the early twentieth century and reaching India through the Reformatory Schools Act 1897, the Children Acts of the states, the Juvenile Justice Act 1986 and the present Juvenile Justice (Care and Protection of Children) Act 2015.

The retreat of capital and corporal punishment. Whipping as a judicial punishment was abolished in India by the Abolition of Whipping Act 1955. The death penalty survives but has been progressively confined, which is the subject of the whole of Module II.

The rise, and partial fall, of the rehabilitative ideal. For roughly thirty years after the Second World War the reformative theory dominated official thinking everywhere. From the 1970s a reaction set in, partly because evaluations suggested that rehabilitation programmes achieved little, and partly because indeterminate sentences in the name of treatment were themselves oppressive. The result is the modern mixed position described in [Which Theory Indian Law Has Adopted].

A worked example

Take one offence, theft of a neighbour's goods by a man named Ramu, and move it through five periods.

In the classical Hindu system. The king's danda is graded, and the first two forms of it are admonition and censure. A first, small theft attracts the lightest of them, and restitution to the person robbed runs alongside the king's punishment.

In the eighteenth century. Ramu is whipped in public, or branded, or transported. The punishment is a spectacle, its purpose is deterrence by example, and it is over in an afternoon.

In 1894. He goes to a prison built under the Prisons Act 1894, is searched and examined on admission, is separated from the unconvicted, is set to labour of a class the Medical Officer says he is fit for, and is punished internally if he refuses to work. The punishment is now the deprivation of liberty for a fixed term.

In 1958. If it is his first offence and he has a home and a job, a court may release him under section 4 of the Probation of Offenders Act 1958 on a bond of good conduct, and section 12 removes the disqualification attaching to his conviction.

In 2024. If the value is under five thousand rupees and he is convicted for the first time, the proviso to section 303(2) of the Bharatiya Nyaya Sanhita 2023 says that on restoring the property he shall be punished with community service.

The same act, and five different answers. That is the history in one example, and it shows the direction: from the body, to the liberty, to the offender's future.

Quick revision

• Four movements: private vengeance to public prosecution; the body to imprisonment; spectacle to seclusion; punishment alone to punishment plus reformation.
• Hammurabi and the talionic tariff: the first advance is a limit.
• Beccaria 1764: certainty over severity, proportion, promptness. Bentham: punishment is an evil justified only by the greater evil it prevents. Howard 1777: prison conditions become a public question.
• Pennsylvania separate system, Auburn silent system, Maconochie's marks and Crofton's progressive stages. The last is the ancestor of remission, open prisons and parole.
• India: transportation to the Andamans; Macaulay's Committee 1836 which rejected reformation; the Prisons Act 1894; the Indian Jails Committee 1919 to 1920 which accepted it.
• Whipping abolished as a judicial punishment by the Abolition of Whipping Act 1955.

Test yourself

1. What is the significance of the Code of Hammurabi in the history of punishment? It is the standard example of the talionic principle, an eye for an eye, expressed as a tariff graded by rank. Its importance is not the harshness but the limit: a fixed tariff stops the escalation that private vengeance produces, and the movement from unlimited vengeance to a fixed scale is the first advance in the history of punishment.

2. Name the three prison systems of the nineteenth century and say what became of each. The Pennsylvania or separate system, total solitary confinement, which produced insanity and was abandoned. The Auburn or silent system, congregate labour by day with silence enforced, which was cheaper and lasted longer. And the progressive stage system of Maconochie and Crofton, in which the prisoner earned release by marks and passed through graded stages, which survives as the remission system, the open prison and parole.

3. Why is Macaulay's Prison Discipline Committee important, and why is it criticised? It is the first systematic official examination of Indian prisons, reporting in 1838, and it produced the central prison system. It is criticised because it expressly rejected reformation as an object of imprisonment and recommended severity, which set the direction of Indian prison administration for eighty years until the Indian Jails Committee of 1919 to 1920 reversed it.

4. Trace the line from Alexander Maconochie to modern Indian law. Maconochie replaced fixed sentences with earned marks on Norfolk Island in the 1840s; Crofton turned that into a progression through stages ending in conditional release under supervision in Ireland; that became the ticket of leave, and then the remission system and parole. In India the remission system appears in section 46(4) of the Prisons Act 1894 and in the state prison rules, and the power to remit a sentence is now in section 473 of the Bharatiya Nagarik Suraksha Sanhita 2023.

The concordance for this paper

Only the provisions this paper actually uses are listed. This is not a general concordance and it is not a substitute for reading the new text.

Punishment: Indian Penal Code to Bharatiya Nyaya Sanhita

Sentencing and execution: Code of Criminal Procedure to Bharatiya Nagarik Suraksha Sanhita

Two provisions have no old counterpart at all, and both are examinable because they are genuinely new: section 4(f) of the Bharatiya Nyaya Sanhita, community service as a punishment, and section 472 of the Bharatiya Nagarik Suraksha Sanhita, which for the first time lays down a statutory procedure and time limit for a mercy petition in a death sentence case.

What did NOT change

Just as important, and frequently forgotten.

The Prisons Act 1894 is untouched. So is the Prisoners Act 1900, the Transfer of Prisoners Act 1950 and the Prisoners (Attendance in Courts) Act 1955. The whole of Module IV therefore runs on statutes that are between seventy and a hundred and thirty years old, sitting under a criminal code that is two years old.

The Probation of Offenders Act 1958 is untouched. Probation therefore has two sources, the Act and section 401 of the Bharatiya Nagarik Suraksha Sanhita, exactly as it had two sources before, and the relationship between them is unchanged.

The Juvenile Justice (Care and Protection of Children) Act 2015 is untouched.

The Constitution is untouched. Articles 20, 21, 22, 72 and 161 mean what they meant.

A worked example

Sunita is convicted in September 2026 of an offence of cheating committed in March 2023.

Which substantive law? The Indian Penal Code 1860, because the act was done when that Code was in force and Article 20(1) forbids the imposition of a penalty greater than the law then in force allowed. The Sanhita cannot be applied to her act.

Which procedure? The Bharatiya Nagarik Suraksha Sanhita 2023 governs the trial itself, subject to the savings for proceedings already pending on 1 July 2024, because procedural law generally operates on pending matters.

Which punishments are available? Those which the Penal Code allowed for that offence. Community service is not available to her, because it was not a punishment when she acted and imposing it would require the court to draw on a law that did not then exist. That single point is worth stating in any answer about community service.

Can she be released on probation? Yes. The Probation of Offenders Act 1958 was not repealed, and it applies to offenders under any law.

Quick revision

• 1 July 2024: Indian Penal Code 1860 replaced by the Bharatiya Nyaya Sanhita 2023; Code of Criminal Procedure 1973 replaced by the Bharatiya Nagarik Suraksha Sanhita 2023; Indian Evidence Act 1872 replaced by the Bharatiya Sakshya Adhiniyam 2023.
• s.53 IPC becomes s.4 BNS, which adds community service. s.75 IPC becomes s.13 BNS. ss.73 and 74 become ss.11 and 12.
• s.360 CrPC becomes s.401 BNSS. Chapter XXIA becomes Chapter XXIII. s.433A becomes s.475. s.436A becomes s.479.
• New with no counterpart: community service, s.4(f) BNS; the mercy petition procedure, s.472 BNSS.
• Offences committed before 1 July 2024 are tried under the old law, because of Article 20(1). Cases decided before that date are cited by the old numbering.
• Untouched: the Prisons Act 1894, the Probation of Offenders Act 1958, the Juvenile Justice Act 2015 and the Constitution.

Test yourself

1. State what replaced what, and when. With effect from 1 July 2024, the Bharatiya Nyaya Sanhita 2023 replaced the Indian Penal Code 1860, the Bharatiya Nagarik Suraksha Sanhita 2023 replaced the Code of Criminal Procedure 1973, and the Bharatiya Sakshya Adhiniyam 2023 replaced the Indian Evidence Act 1872.

2. Which provision now contains the list of punishments, and what has been added to it? Section 4 of the Bharatiya Nyaya Sanhita 2023, replacing section 53 of the Indian Penal Code. Community service has been added as a punishment, at section 4(f).

3. An offence was committed in 2022 and is tried in 2026. Which substantive law applies, and why? The Indian Penal Code 1860. Article 20(1) of the Constitution forbids subjecting a person to a penalty greater than that which might have been inflicted under the law in force at the time of the offence, and section 358(2) of the Bharatiya Nyaya Sanhita together with the General Clauses Act 1897 saves liabilities incurred under the repealed Code.

4. Where is plea bargaining now, and where was it? It is in Chapter XXIII of the Bharatiya Nagarik Suraksha Sanhita 2023, sections 289 to 300. It was in Chapter XXIA of the Code of Criminal Procedure 1973, sections 265A to 265L, inserted by the Criminal Law (Amendment) Act 2005.

5. Name two Acts central to this paper that the 2024 reform did not touch. The Prisons Act 1894, which is still the general law of imprisonment, and the Probation of Offenders Act 1958. The Juvenile Justice (Care and Protection of Children) Act 2015 is a third.

Imprisonment for life. Imprisonment for the remainder of the convict's natural life, subject to remission and commutation by the appropriate Government. Section 6 of the Sanhita reckons it as twenty years only for the purpose of calculating fractions of a term. See [Imprisonment for Life, and What It Means].

Imprisonment, rigorous. With hard labour. The Sanhita itself says so in section 4(c)(1), and what hard labour means in practice comes from sections 35 and 36 of the Prisons Act 1894. See [Rigorous and Simple Imprisonment].

Imprisonment, simple. Without hard labour. A simple imprisonment prisoner may be required to do some work only with their consent, under section 36 of the Prisons Act 1894.

Forfeiture of property. Almost obsolete as a general punishment and confined to a small number of offences. See [Forfeiture of Property as a Punishment].

Fine. Available very widely, alone or with imprisonment, and governed by section 8 of the Sanhita. See [Fine, and Imprisonment in Default].

Community service. Unpaid work for the benefit of the community, ordered as a punishment. Defined in the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita 2023.

The list is exhaustive, and what that means

A court cannot invent a punishment. It cannot order an offender to apologise publicly, to write an essay, to undergo counselling, to donate to a charity, or to be photographed with a placard, as a punishment for an offence under the Sanhita. Courts have occasionally done such things and they have no statutory foundation.

Three qualifications, each of which a good answer should make.

Other statutes may provide other consequences. Disqualification from holding public office, cancellation of a licence, and confiscation of the instrument of the offence are provided by particular statutes and are not punishments under section 4.

Compensation is not a punishment under section 4 but a court may order it under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, in addition to or instead of a fine in the cases that provision allows.

A court may release an offender without punishing at all. Section 4 of the Probation of Offenders Act 1958 and section 401 of the Bharatiya Nagarik Suraksha Sanhita permit release on a bond of good conduct in place of any sentence. That is not a seventh punishment; it is the withholding of punishment.

A worked example

Deepak is convicted of an offence punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

What the judge may do. Send him to prison for up to three years, rigorous or simple, or split the term between the two under section 7 of the Sanhita. Fine him instead. Do both. Add a default term of imprisonment for non-payment of the fine, subject to the limits in section 8. Add an order of compensation under section 395 of the Bharatiya Nagarik Suraksha Sanhita. Or release him on probation instead of sentencing him at all.

What the judge may NOT do. Order community service, unless the offence is one for which the Sanhita provides community service. Order him to be flogged. Order forfeiture of his property, because that punishment is available only where the provision creating the offence provides for it. Or invent something the list does not contain.

Distinctions students confuse

Quick revision

• Section 4 of the Bharatiya Nyaya Sanhita 2023: death; imprisonment for life; imprisonment, rigorous with hard labour or simple; forfeiture of property; fine; community service.
• It replaced section 53 of the Indian Penal Code 1860 on 1 July 2024. Community service is the addition.
• Transportation was removed from section 53 by amendment in 1955.
• The list is exhaustive for offences under the Sanhita. A court may not invent a punishment.
• Probation is not a seventh punishment; it is the withholding of punishment under the Probation of Offenders Act 1958 or section 401 of the Bharatiya Nagarik Suraksha Sanhita.
• Compensation under section 395 of the Bharatiya Nagarik Suraksha Sanhita is not a punishment under section 4.

Test yourself

1. Reproduce section 4 of the Bharatiya Nyaya Sanhita 2023. The punishments to which offenders are liable under the provisions of the Sanhita are death; imprisonment for life; imprisonment, which is of two descriptions, namely rigorous, that is with hard labour, and simple; forfeiture of property; fine; and community service.

2. What is the single most important difference between section 4 of the Sanhita and section 53 of the Indian Penal Code? Section 4 adds community service, at clause (f). It was not a punishment under the Penal Code in any form, and it entered Indian general criminal law on 1 July 2024.

3. May a court order an offender to plant a hundred trees as a punishment? Not as a punishment under the Sanhita, because the list in section 4 is exhaustive and does not include it. If the offence is one for which the Sanhita provides community service, work of that kind may be ordered as community service under section 4(f), because the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita defines community service as work the court may order a convict to perform for the benefit of the community without remuneration. A condition of that sort may also be attached to a bond under the Probation of Offenders Act 1958, but that is a condition of release and not a punishment.

4. Is transportation still a punishment in India? No. It was removed from section 53 of the Indian Penal Code and replaced by imprisonment for life in 1955, and it does not appear in section 4 of the Sanhita. The phrase survives only in old judgments and in section 57 of the Prisons Act 1894, which has never been amended.

Three entries in that table repay attention because they are traps.

Section 109(2), not section 109(1). Attempt to murder carries ten years, or life if hurt is caused. Only where the offender was already under a life sentence and hurt is caused does death become available.

Section 140(2), not section 140(1). Kidnapping a person in order that they be murdered carries life or ten years and not death. It is kidnapping for ransom, with a threat to kill or with death or hurt caused, that carries death.

Section 160, not section 159. Abetting mutiny simply carries life or ten years. Death is available only where the mutiny is actually committed in consequence of the abetment.

Two of those offences did not exist in the Indian Penal Code

Section 111, organised crime, and section 113, terrorist act, are new to the general penal law. Before 1 July 2024 organised crime was dealt with under State legislation such as the Maharashtra Control of Organised Crime Act 1999, and terrorism under the Unlawful Activities (Prevention) Act 1967. Both are now in the ordinary penal code, and both carry death where the offence has resulted in death.

That is a fact worth carrying into any answer on whether India is moving towards abolition. The Sanhita did not reduce the number of capital offences. It added two.

The successor to section 303 of the Penal Code

Section 104 punishes murder by a person under sentence of imprisonment for life with death or with imprisonment for life meaning the remainder of natural life.

Its predecessor, section 303 of the Indian Penal Code, made the death sentence mandatory in exactly that situation, and it was struck down as unconstitutional. Section 104 makes it discretionary. Parliament has written the Supreme Court's decision into the statute, which is what [Mithu and the Mandatory Death Sentence] explains.

Special laws add more

The Sanhita is not the only source. Death is provided by, among others, the Unlawful Activities (Prevention) Act 1967 for a terrorist act causing death, the Narcotic Drugs and Psychotropic Substances Act 1985 for certain repeat offences involving a commercial quantity, the Explosive Substances Act 1908, the Protection of Children from Sexual Offences Act 2012 in its aggravated forms, the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989 where false evidence leads to an execution, and the Army, Navy and Air Force Acts. A complete answer says so.

Two things the Sanhita says about how death is imposed

Special reasons must be recorded. Section 393(3) of the Bharatiya Nagarik Suraksha Sanhita 2023 provides that when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and, in the case of a sentence of death, the special reasons for that sentence.

That subsection is the hinge of Module II. It was section 354(3) of the Code of Criminal Procedure 1973 and it reversed the earlier position, under which death was the normal sentence for murder and reasons had to be given for not imposing it. Since 1973 life imprisonment is the rule and death the exception, and it is the words "special reasons" that the whole rarest of rare doctrine interprets.

It must be confirmed. Section 22(2) of the Bharatiya Nagarik Suraksha Sanhita provides that a sentence of death passed by a Sessions Judge or Additional Sessions Judge is subject to confirmation by the High Court, and Chapter XXX, sections 407 to 412, contains the procedure. See [Confirmation by the High Court].

Two categories who may not be executed

A child. Section 21 of the Juvenile Justice (Care and Protection of Children) Act 2015 provides that no child in conflict with law shall be sentenced to death or to imprisonment for life without the possibility of release.

A woman found to be pregnant. Section 456 of the Bharatiya Nagarik Suraksha Sanhita 2023 provides that if a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to imprisonment for life.

A worked example

Rakesh is convicted under section 103(1) of the Sanhita of the murder of his employer during a robbery.

Is death available? Yes. Section 103(1) provides death or imprisonment for life.

Is it the starting point? No. Section 393(3) of the Bharatiya Nagarik Suraksha Sanhita requires special reasons for a death sentence, so imprisonment for life is the rule and the judge must justify departing from it.

What must the judge do first? Hear him on the question of sentence under section 258(2), consider the circumstances of the crime and of the offender both, and apply the rarest of rare test. That is [Bachan Singh and the Rarest of Rare].

If the Sessions Judge awards death, is that the end? No. The sentence must be submitted to the High Court for confirmation under section 407 and cannot be executed until confirmed.

And if Rakesh were seventeen at the time? Death is not available at all, whatever the facts, because of section 21 of the Juvenile Justice Act 2015.

What beginners get wrong

They think murder is punishable with death. Murder is punishable with death or imprisonment for life. The alternative is on the face of the section and life is the rule.

They think section 303 still exists. It does not, and its successor, section 104 of the Sanhita, is discretionary.

They confuse the offences that carry death with the offences for which death is awarded. The Sanhita provides death for sixteen offences or sub-offences. In practice death sentences are passed almost entirely under section 103 and, since 2013, under the aggravated sexual offence provisions, and the great majority are commuted on appeal.

Quick revision

• Death is section 4(a) of the Bharatiya Nyaya Sanhita 2023, available only where a provision expressly gives it, and always as an alternative to imprisonment for life.
• The Sanhita's capital provisions: 65(2), 66, 70(2), 71, 103(1), 103(2), 104, 107, 109(2), 111(2)(a), 113(2)(a), 140(2), 147, 160, 230(2), 310(3).
• Sections 111 and 113, organised crime and terrorist act, are new to the general penal law. The Sanhita added capital offences rather than reducing them.
• Section 104 replaced the mandatory section 303 of the Indian Penal Code with a discretionary provision.
• Traps: 109(2) not 109(1); 140(2) not 140(1); 160 not 159.
• Special reasons are compulsory: section 393(3) of the Bharatiya Nagarik Suraksha Sanhita 2023, formerly section 354(3) of the Code of Criminal Procedure 1973.
• Confirmation by the High Court is compulsory: section 22(2) and Chapter XXX.
• A child may never be sentenced to death, section 21 of the Juvenile Justice Act 2015. A pregnant woman's death sentence shall be commuted, section 456 of the Bharatiya Nagarik Suraksha Sanhita.

Test yourself

1. Which provision of the Bharatiya Nyaya Sanhita 2023 punishes murder, and with what? Section 103(1). Whoever commits murder shall be punished with death or with imprisonment for life, and shall also be liable to fine.

2. What is the significance of section 104 of the Sanhita? It punishes murder committed by a person already under sentence of imprisonment for life, with death or with imprisonment for life meaning the remainder of natural life. It is the successor to section 303 of the Indian Penal Code, which made death mandatory in that situation and which was struck down as unconstitutional. Parliament has enacted the discretionary version, so the constitutional objection does not arise.

3. Name two capital offences the Sanhita created that had no counterpart in the Indian Penal Code. Section 111, organised crime, where the offence has resulted in the death of a person; and section 113, a terrorist act which has resulted in the death of a person. Both were previously dealt with under special legislation and both now sit in the general penal code.

4. What must a court do before it may pass a sentence of death, and what must happen afterwards? Before: hear the accused on the question of sentence under section 258(2) of the Bharatiya Nagarik Suraksha Sanhita and record special reasons under section 393(3). Afterwards: a death sentence passed by a Sessions Judge must be submitted to the High Court for confirmation under section 407, and may not be executed until confirmed.

5. Name two people on whom a sentence of death may not be executed, with authority. A child in conflict with law, by section 21 of the Juvenile Justice (Care and Protection of Children) Act 2015. And a woman found to be pregnant, whose sentence the High Court shall commute to imprisonment for life under section 456 of the Bharatiya Nagarik Suraksha Sanhita 2023.

Commutation, under section 474, which allows the appropriate Government to commute a sentence of imprisonment for life for imprisonment for a term not less than seven years.

That wording is new and it reverses the old rule. Section 433(b) of the Code of Criminal Procedure 1973 allowed a life sentence to be commuted for imprisonment for a term not exceeding fourteen years, or for a fine. Section 474(b) of the Sanhita sets a floor of seven years instead of a ceiling of fourteen, and drops the option of a fine. A book written before 1 July 2024 states the opposite of the present law on this point.

Pardon, reprieve, respite, remission, suspension or commutation by the President under Article 72 of the Constitution or by the Governor under Article 161.

Ordinary prison remission does not shorten it by itself. A term convict who earns remission is released when the sentence less remission expires, because the sentence has an end date to subtract from. A life sentence has no end date, so earned remission has nothing to work on. It becomes relevant only when the Government exercises its power of remission and takes the earned remission into account.

That distinction is the heart of the matter and it is what the leading Indian case decided.

The restriction in section 475

Section 475 of the Bharatiya Nagarik Suraksha Sanhita 2023 provides that where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 474 into one of imprisonment for life, that person shall not be released from prison unless they had served at least fourteen years of imprisonment.

Three points, each examinable.

It is a floor, not a ceiling. It says the convict shall not be released before fourteen years. It does not say they shall be released after fourteen.

It applies only to two classes: a life sentence for an offence that could have carried death, and a life sentence substituted for a death sentence by commutation. An ordinary life sentence for an offence that never carried death is outside it.

It was section 433A of the Code of Criminal Procedure 1973, inserted in 1978. Every decision on section 433A is good law on section 475.

A worked example

Sameer is sentenced to imprisonment for life for murder under section 103(1) of the Sanhita on 1 January 2020.

When does his sentence end? On his death, unless something intervenes.

Does he go free in 2034, after fourteen years? No. Section 475 says he may not be released before completing fourteen years, because murder is an offence for which death is one of the punishments provided by law. After fourteen years his case becomes eligible for consideration under the state's premature release policy. Consideration is not release.

Suppose a statute says that an attempt to commit his offence is punishable with half the term. Now section 6 operates. Life is reckoned as twenty years for the purpose of that fraction, so the attempt carries ten years.

Suppose the State Government remits the remainder of his sentence in 2038. He is released. His sentence is not converted into an eighteen year sentence; the unexpired portion is remitted. If the remission is later set aside, the life sentence revives.

Suppose a court had instead sentenced him to imprisonment for life with a direction that he not be released for thirty years. That is a fixed term life sentence, and its validity is the subject of [Life Without Remission: Shraddananda and Sriharan].

Distinctions

What beginners get wrong

Life means fourteen years. It does not. Fourteen is the minimum period before release may even be considered in the cases section 475 covers.

Life means twenty years because of section 6. It does not. Section 6 operates only when a fraction of a term has to be calculated.

A life convict has a right to be released after fourteen years. There is no such right. There is a right to have a case for premature release considered in accordance with the state's policy, and a right to have that consideration made fairly, but the decision is the Government's.

Remission and commutation are the same thing. Remission reduces the quantum of the sentence without changing its character. Commutation changes the sentence into one of a different kind, for example death into imprisonment for life.

Quick revision

• Imprisonment for life means imprisonment for the remainder of natural life.
• Section 6 of the Bharatiya Nyaya Sanhita 2023, formerly section 57 of the Indian Penal Code, reckons life as twenty years for calculating fractions of terms only.
• Release before death is only by remission under section 473 of the Bharatiya Nagarik Suraksha Sanhita, commutation under section 474, or the constitutional powers in Articles 72 and 161.
• Section 475, formerly section 433A of the Code of Criminal Procedure 1973, bars release before fourteen years where the offence could have carried death or where a death sentence was commuted.
• Ordinary earned remission cannot by itself release a life convict, because there is no fixed term from which to subtract it.

Test yourself

1. What does a sentence of imprisonment for life mean? Imprisonment for the whole of the remainder of the convict's natural life, unless the sentence is remitted or commuted by the appropriate Government or ended by the exercise of the constitutional power of pardon.

2. Explain section 6 of the Bharatiya Nyaya Sanhita 2023 and the mistake it causes. It provides that in calculating fractions of terms of punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for twenty years unless otherwise provided. It applies only where a fraction has to be worked out, for example where a provision imposes half the punishment for the principal offence. It is frequently misread as fixing the length of a life sentence at twenty years, which it does not do.

3. What does section 475 of the Bharatiya Nagarik Suraksha Sanhita 2023 provide, and to whom does it apply? That a person shall not be released before serving fourteen years of imprisonment where a sentence of imprisonment for life was imposed for an offence for which death is one of the punishments provided by law, or where a death sentence was commuted into one of imprisonment for life under section 474. It is a minimum period before release, not an entitlement to release at fourteen years, and it does not apply to a life sentence for an offence that never carried death.

4. Why does earned prison remission not release a life convict? Because remission earned under the prison rules is subtracted from a fixed term, and a life sentence has no fixed term to subtract from. Earned remission becomes relevant only when the appropriate Government exercises its statutory power to remit the sentence and takes the convict's earned remission into account in deciding whether to do so.

Section 36 of the Prisons Act 1894, employment of criminal prisoners sentenced to simple imprisonment, is the counterpart. The Superintendent shall provide for the employment of such prisoners as long as they so desire, and a prisoner not sentenced to rigorous imprisonment shall not be punished for neglect of work except by an alteration in the scale of diet under the prison rules.

Read those two together and the legal difference is exact. A rigorous imprisonment prisoner must work and may be punished for refusing. A simple imprisonment prisoner may work if they wish, and the only sanction for not working is a change of diet.

A worked example

Vikas is convicted of an offence punishable with imprisonment of either description for up to five years. The judge decides on three years.

Wholly rigorous. He must work up to nine hours a day at the labour the prison assigns, subject to the Medical Officer's certification of fitness under section 24(2) and the continuing supervision under section 35.

Wholly simple. He may ask to work and the Superintendent must provide for it. He cannot be compelled, and his refusal can be met only by an alteration in his diet under the rules.

Two years rigorous and one year simple. Section 7 permits it and the sentence must say so in terms. A sentence that simply says "three years' imprisonment" without specifying the description is defective, and an appellate court will read it in the light of the offence and the record.

Where each is used

Some offences carry only simple imprisonment. They tend to be offences of default, contempt, and minor public order, where the sentence is a mark of disapproval rather than a punishment for wickedness.

Some carry only rigorous imprisonment. The Sanhita specifies rigorous imprisonment for a number of grave property and violent offences: dacoity under section 310(2), for example, carries rigorous imprisonment which may extend to ten years.

Most carry imprisonment of either description, and the choice is the court's under section 7.

What beginners get wrong

They think simple imprisonment means comfortable imprisonment. It does not. The prisoner is confined, searched, classified, subject to prison discipline and to the punishments in section 46 of the Prisons Act 1894 exactly as any other prisoner. The only difference is compulsory labour.

They think hard labour means breaking rocks. The class of labour is fixed by the prison rules and by the Medical Officer's assessment of fitness under section 24(2), and it includes agriculture, weaving, carpentry, printing, cooking and prison maintenance work in most Indian prisons.

They think the court cannot mix the two. Section 7 expressly allows it.

They think prison labour must be unpaid. That has been decided the other way. Requiring a prisoner to work without payment has been held to be forced labour, and prisoners must be paid reasonable wages for the work they do. That is [Corrective Labour and Prison Wages], and it is the most important modern development on this topic.

Limits and criticism

The nine hour limit is a maximum, not a norm, and it dates from 1894.

Labour is unavailable in practice. Overcrowding, shortage of instructors and shortage of work mean that in many Indian prisons a majority of prisoners are idle whatever their sentence says. A sentence of rigorous imprisonment that produces no labour is a sentence of ordinary imprisonment with a harsher name.

The distinction is arguably obsolete. If labour is corrective it should not be reserved for the graver offender, and if it is punitive it sits badly with a reformative prison system. Several countries have abolished the distinction and made work available to all sentenced prisoners on the same terms.

Distinctions

Quick revision

• Section 4(c) of the Bharatiya Nyaya Sanhita 2023: imprisonment is rigorous, that is with hard labour, or simple.
• Section 7 permits the court to make the sentence wholly rigorous, wholly simple, or partly each.
• Section 35 of the Prisons Act 1894: nine hours a day maximum, fortnightly weighing, and the Medical Officer may take a prisoner off a class of labour.
• Section 36: a simple imprisonment prisoner works only if they wish, and may be met only with an alteration of diet if they refuse.
• Prisoners must be paid reasonable wages for prison labour.
• The origin of the distinction is the nineteenth century belief that labour is corrective, which sits badly with reserving it for the graver offender.

Test yourself

1. State the statutory difference between rigorous and simple imprisonment. Section 4(c) of the Bharatiya Nyaya Sanhita 2023 defines rigorous imprisonment as imprisonment with hard labour, and simple imprisonment as imprisonment without it. The practical difference comes from the Prisons Act 1894: a prisoner sentenced to rigorous imprisonment must work and may be punished for neglect of work, while under section 36 a prisoner sentenced to simple imprisonment is to be employed only as long as they desire and may be met only with an alteration of diet for neglect.

2. May a court sentence an offender to two years' rigorous and one year's simple imprisonment? Yes. Section 7 of the Sanhita provides that where an offender is punishable with imprisonment of either description, the court may direct that the imprisonment be wholly rigorous, wholly simple, or that any part be rigorous and the rest simple.

3. What limits does the Prisons Act 1894 place on hard labour? Section 35(1): not more than nine hours in any one day except on an emergency with the Superintendent's written sanction. Section 35(2): the Medical Officer must examine labouring prisoners from time to time and record each prisoner's weight on their history-ticket at least once a fortnight. Section 35(3): where the Medical Officer is of opinion that a prisoner's health suffers from a class of labour, they must be moved to another.

4. Give one argument for abolishing the distinction. If labour is genuinely corrective, it is irrational to reserve it for the graver offender and to withhold it from the lesser one as an act of leniency. Either labour reforms, in which case it should be available to all sentenced prisoners, or it is simply a hardship, in which case a modern prison system committed to reformation should not be imposing it as one.

Sub-section (5): the ceiling where the offence is punishable with fine or community service only. The default imprisonment shall be simple, and shall not exceed two months where the fine does not exceed five thousand rupees, four months where it does not exceed ten thousand rupees, and one year in any other case.

Sub-section (6): the default term ends when the fine is paid. Imprisonment imposed in default terminates whenever the fine is paid or levied by process of law. And if part is paid, the imprisonment terminates as soon as the term suffered is proportionate to the part still unpaid. The Sanhita gives its own illustration and it is worth working through.

Sub-section (7): the fine may be levied within six years, or within the term of imprisonment if that is longer, and the offender's death does not discharge property that would after death be liable for their debts.

The Sanhita's own worked example

Section 8(6) carries this illustration, and reproducing the arithmetic is the fastest way to understand the proportionality rule.

A is fined one thousand rupees with four months' imprisonment in default.

The rule behind the table: the term served must be at least proportionate to the part of the fine still unpaid. Three quarters of the fine paid leaves one quarter, and one quarter of four months is one month. Half paid leaves half, and half of four months is two months.

A second worked example, on the ceiling

Meera is convicted of an offence punishable with imprisonment of either description for a term which may extend to two years, or with fine, or with both. The court sentences her to six months' rigorous imprisonment and a fine of forty thousand rupees.

What is the maximum default term? The offence is punishable with imprisonment as well as fine, so sub-section (3) applies. One fourth of the maximum fixed for the offence, which is two years, is six months.

Note what the fraction is taken of. It is one fourth of the maximum the offence carries, not one fourth of the sentence actually passed. A court that took one fourth of the six months awarded would be applying the wrong rule.

When does the default term run? After the six months' substantive sentence, because sub-section (2) says the default imprisonment is in excess of any other imprisonment.

If she pays half the fine after serving two months of the default term? Half the fine remains, and half of six months is three months. She must complete three months of default imprisonment.

The recovery of a fine

Sections 461 to 464 of the Bharatiya Nagarik Suraksha Sanhita 2023 provide the machinery.

Section 461 allows the court passing the sentence to issue a warrant for the levy of the amount by attachment and sale of the offender's movable property, or a warrant to the Collector to realise the amount as arrears of land revenue.

Section 462 protects the person who buys under the warrant.

Section 464 allows a court to suspend the execution of a sentence of imprisonment in default and to release the offender on a bond to appear and pay, and to allow payment by instalments.

Section 464 is the provision that stands between a poor offender and a prison cell, and it is very rarely used. Mentioning it separates a good answer from an ordinary one.

What beginners get wrong

They think default imprisonment is a punishment for the offence. It is not. It is a means of enforcing the fine, which is why it ends the moment the fine is paid. That is also why it runs in excess of the substantive sentence rather than concurrently with it.

They think the default term counts as part of the sentence for remission. It does not, and a prisoner serving default imprisonment is in a different position from one serving a substantive sentence.

They take the fraction from the sentence awarded. Sub-section (3) takes it from the maximum fixed for the offence.

They think an unlimited fine means any fine. Section 8(1) says unlimited but not excessive, and an excessive fine is a ground of appeal.

Criticism

The fine as Indian law administers it discriminates by wealth, and the default mechanism turns that discrimination into imprisonment. A fine the offender cannot pay is a sentence of imprisonment imposed without the court ever deciding that imprisonment was the right sentence.

Two answers exist elsewhere. The day fine, used in Scandinavia and Germany, fixes the fine as a number of days' income, so that the same number of units is the same punishment for rich and poor. And community service in default of payment, which several systems allow, avoids imprisonment altogether. India has now added community service to the list of punishments, and section 8(4) and (5) of the Sanhita already contemplate default of community service, so the second reform is closer than it was.

A worked example

Anil is convicted of an offence punishable with imprisonment for up to four years and a fine. The court fines him twelve thousand rupees and orders three months' imprisonment in default.

Is the default term lawful? The offence is punishable with imprisonment as well as fine, so section 8(3) of the Bharatiya Nyaya Sanhita 2023 applies: the default term may not exceed one fourth of the maximum term fixed for the offence. One fourth of four years is one year, so three months is within the cap.

Suppose instead the offence carried a fine only. Then section 8(5) would apply, the default imprisonment would have to be simple, and on a fine of twelve thousand rupees the cap would be one year, the top slab, because the fine exceeds ten thousand.

Anil pays nothing and is taken into custody. After six weeks his family pays nine thousand rupees. Under section 8(6)(b) the imprisonment terminates when the proportion of the fine paid is at least proportional to the term already served. Three quarters of the fine has been paid and half the term served, so he is discharged.

Suppose he serves the whole three months. Under the proviso to section 461(1) of the Bharatiya Nagarik Suraksha Sanhita 2023 no court shall then issue a warrant to levy the fine, unless for special reasons recorded in writing it considers it necessary, or unless it has ordered payment of compensation out of the fine under section 395.

And if the court had ordered compensation to a victim out of the fine? Then the exception applies and the fine may still be levied, by attachment and sale of movable property or by a warrant to the Collector, which may not be executed by arresting him.

Quick revision

• Fine is section 4(e) of the Bharatiya Nyaya Sanhita 2023, governed by section 8.
• Where no sum is expressed the fine is unlimited but shall not be excessive: section 8(1).
• Default imprisonment is in excess of any other sentence: section 8(2).
• Ceiling where the offence carries imprisonment and fine: one fourth of the maximum for the offence, section 8(3).
• Ceiling where the offence carries fine or community service only: simple imprisonment, two months up to a fine of five thousand rupees, four months up to ten thousand, one year otherwise, section 8(5).
• Default imprisonment ends on payment, and proportionately on part payment: section 8(6).
• The fine is recoverable for six years and death does not discharge the property: section 8(7).
• Recovery machinery: sections 461 to 464 of the Bharatiya Nagarik Suraksha Sanhita 2023. Section 464 allows suspension and instalments.

Test yourself

1. An offence is punishable with imprisonment up to three years, or fine, or both. The court awards one year and a fine of fifty thousand rupees. What is the maximum default term? Nine months. Section 8(3) fixes the maximum at one fourth of the term of imprisonment which is the maximum for the offence, and one fourth of three years is nine months. The fraction is taken from the statutory maximum, not from the one year actually awarded.

2. An offence is punishable with fine only. The fine imposed is eight thousand rupees. What default term may be awarded? Simple imprisonment not exceeding four months, under section 8(5)(b), because the fine does not exceed ten thousand rupees. Section 8(5) requires the default imprisonment to be simple in such a case.

3. A is fined two thousand rupees with eight months' imprisonment in default. After three months he pays one thousand rupees. What follows? Half the fine remains unpaid, and half of eight months is four months. He must serve four months in all, so he remains in custody for one further month and is then discharged. This follows from section 8(6)(b), which requires the term suffered to be at least proportionate to the part of the fine still unpaid.

4. Why is default imprisonment not a punishment for the offence? Because it is a means of enforcing payment. Section 8(6)(a) provides that it terminates whenever the fine is paid or levied by process of law, which no punishment for an offence would do, and section 8(2) makes it run in excess of any substantive sentence rather than as part of it.

5. Give the standard criticism of the fine and one reform that answers it. The same fine is a different punishment for a rich and a poor offender, and the default mechanism converts the poor offender's inability to pay into imprisonment that the court never decided was appropriate. The day fine, which expresses the penalty as a number of days' income, answers it by making the burden equal; and providing community service rather than imprisonment in default answers the second half.

The examinable point is that the modern law of taking property from offenders sits almost entirely outside section 4(d), in special statutes, and it is growing rather than shrinking. A student who says forfeiture is obsolete has stated only half the position.

The disposal of property by a criminal court

There is also a general power that is not a punishment at all. Chapter XXXVI of the Bharatiya Nagarik Suraksha Sanhita 2023 empowers a criminal court to make orders for the disposal of property produced before it or in its custody regarding which an offence appears to have been committed, including orders for destruction, delivery to the person entitled and, in the case of property the possession of which is itself an offence, confiscation.

That is a restitutionary and regulatory power. It is not the punishment in section 4(d), and it does not require a conviction.

A worked example

Faisal is convicted under section 155 of the Sanhita of receiving a consignment of goods knowing them to have been taken in a depredation on the territory of a friendly State.

What may the court award? Imprisonment of either description up to seven years, a fine, and forfeiture of the property received. The forfeiture is expressly authorised by the section creating the offence, which is what section 4(d) requires.

May the court forfeit his house as well? No. Section 155 authorises forfeiture of the property so received and nothing more. General forfeiture of an offender's estate is not available in Indian law.

Suppose the goods had been the proceeds of a scheduled offence under the Prevention of Money-Laundering Act 2002. Then a separate and much wider machinery applies, under which property may be provisionally attached before any conviction and confiscated afterwards. That is not a punishment under section 4(d) and it should not be described as one.

What beginners get wrong

They say forfeiture has been abolished. It has not. General forfeiture of an offender's whole property was abolished, and specific forfeiture survives in section 4(d) and in sections 154 and 155.

They confuse forfeiture with a fine. A fine is a sum of money the offender is ordered to pay. Forfeiture takes identified property without any sum being fixed.

They confuse it with confiscation under a special statute. The two are different in requirement, in rationale and in scale, and the table above is the answer.

They forget the objection. The reason general forfeiture was abolished is that it punishes the offender's family. Any answer on this topic should say so, because it is the only interesting thing about a punishment that is otherwise nearly dead.

Quick revision

• Forfeiture of property is section 4(d) of the Bharatiya Nyaya Sanhita 2023.
• Under the Sanhita it is available only under section 154, depredation on the territories of a friendly foreign State, and section 155, receiving property so taken.
• General forfeiture of an offender's whole estate was abolished in 1921 with the repeal of sections 61 and 62 of the Indian Penal Code, because it punished the offender's family.
• Confiscation and attachment under special statutes is far wider, may precede conviction, and is not a punishment under section 4(d).
• Chapter XXXVI of the Bharatiya Nagarik Suraksha Sanhita 2023 gives a general power to dispose of property, which is restitutionary rather than punitive.

Test yourself

1. Under which two sections of the Bharatiya Nyaya Sanhita 2023 is forfeiture of property available? Section 154, committing depredation on the territories of a foreign State at peace with the Government of India, which allows forfeiture of any property used or intended to be used in committing the depredation or acquired by it; and section 155, receiving property knowing it to have been taken in the commission of an offence under section 153 or 154, which allows forfeiture of the property so received.

2. Why was general forfeiture abolished? Because it took the whole of the convict's property, and so fell upon the convict's family and heirs rather than on the convict alone. That cannot be justified on a deterrent, retributive or reformative theory as to the dependants, and it destroyed the family's means of subsistence during the sentence.

3. Distinguish forfeiture as a punishment from confiscation under a special statute. Forfeiture under section 4(d) is one of the punishments the Sanhita lists, requires a conviction, and is confined to the property the section creating the offence specifies. Confiscation under statutes such as the Prevention of Money-Laundering Act 2002 or the Narcotic Drugs and Psychotropic Substances Act 1985 is a separate statutory consequence, may be preceded by attachment before conviction, extends to the proceeds and instruments of crime generally, and is justified on the footing that an offender should not retain the fruits of the offence rather than as punishment.

The third element distinguishes it from prison labour, for which a prisoner must be paid reasonable wages. The distinction is defensible: prison labour is compulsory work done by a person the state is already holding, whereas community service is the punishment itself, offered in place of imprisonment.

The six offences

Community service is not a general alternative to imprisonment. A court may award it only where the section creating the offence provides for it. Under the Bharatiya Nyaya Sanhita 2023 there are six.

Section 303 is the important one and it is different in kind. In the other five, community service is one option among several and the court chooses. In the proviso to section 303(2) the word is shall: a first time offender convicted of theft of property worth less than five thousand rupees, who returns the property or its value, shall be punished with community service. That is the only place in Indian law where community service is the prescribed punishment rather than an option.

Who may award it

Section 23 of the Bharatiya Nagarik Suraksha Sanhita 2023 sets the sentencing powers of Magistrates and includes community service in both:

• Section 23(2): a Magistrate of the first class may pass a sentence of imprisonment up to three years, or fine up to fifty thousand rupees, or both, or community service.
• Section 23(3): a Magistrate of the second class may pass a sentence of imprisonment up to one year, or fine up to ten thousand rupees, or both, or community service.

Default

Section 8 of the Bharatiya Nyaya Sanhita 2023 contemplates default of community service as well as default of a fine.

Section 8(4): the imprisonment which the court imposes in default of payment of a fine or in default of community service may be of any description to which the offender might have been sentenced for the offence.

Section 8(5): if the offence is punishable with fine or community service, the imprisonment imposed in default of payment of the fine or in default of community service shall be simple, and shall not exceed two months where the fine does not exceed five thousand rupees, four months where it does not exceed ten thousand rupees, and one year in any other case.

So a convict who does not perform the community service ordered may be imprisoned, and the statute says by how much.

A worked example

Anjali, aged twenty two, with no previous conviction, is convicted of stealing a wallet containing three thousand two hundred rupees. She returns the money.

What must the court do? The proviso to section 303(2) of the Sanhita applies: the value is less than five thousand rupees, it is a first conviction, and the value of the property has been returned. She shall be punished with community service.

What does that mean in practice? Unpaid work benefiting the community, ordered by the court, for which she receives nothing. The nature, the hours and the supervising agency are matters for the court and for the rules the State Government makes.

What if she does not do it? Section 8(4) and (5) allow imprisonment in default. Because the offence is punishable with imprisonment as well, the default term may be of either description under section 8(4).

Suppose the wallet had contained eight thousand rupees. The proviso does not apply, and section 303(2) provides imprisonment of either description for not less than one year and up to five years, and fine. Community service is not available at all.

What is NOT settled

Three things a candid answer should say, because the provision is two years old.

There is no statutory maximum number of hours. The Sanhita and the Sanhita's procedural companion do not fix how much community service may be ordered. In England the Criminal Justice Act 2003 fixes a range of forty to three hundred hours. India leaves it to the court.

There is no statutory machinery for supervision. Who assigns the work, who supervises it, who certifies completion and who reports a breach are matters for rules the State Governments are making, and practice differs between States.

There is no probation officer in the scheme. The obvious body to supervise community service is the probation service created by sections 13 and 14 of the Probation of Offenders Act 1958, and the Sanhita does not connect the two.

Distinctions

Quick revision

• Community service is section 4(f) of the Bharatiya Nyaya Sanhita 2023, new on 1 July 2024. It is the first addition to the list of punishments in India in more than a century.
• Defined in the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita 2023: work ordered by the court as a punishment benefiting the community, without remuneration.
• Available for six offences: sections 202, 209, 226, 303(2) proviso, 355 and 356(2) of the Sanhita.
• Section 303(2)'s proviso is the only one that makes it compulsory: petty theft under five thousand rupees, first conviction, property returned.
• Magistrates of the first and second class may award it: section 23(2) and (3) of the Bharatiya Nagarik Suraksha Sanhita.
• Default of community service may be met with imprisonment: section 8(4) and (5) of the Sanhita.
• Not settled: the maximum hours, the supervising machinery, and the relationship with the probation service.

Test yourself

1. Define community service and give the provision. The Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita 2023 defines community service as the work which the court may order a convict to perform as a form of punishment that benefits the community, for which he shall not be entitled to any remuneration. It is a punishment under section 4(f) of the Bharatiya Nyaya Sanhita 2023.

2. Name the offences for which it is available. Sections 202, 209, 226, 355 and 356(2) of the Bharatiya Nyaya Sanhita 2023, where it is one option among imprisonment, fine or both; and the proviso to section 303(2), theft of property worth less than five thousand rupees by a first time offender who returns the property or its value, where it is compulsory.

3. Why is the proviso to section 303(2) different from the other five? Because it uses the word shall. In the other five community service is one option and the court chooses. In the proviso, where the value is under five thousand rupees, the conviction is a first conviction and the property or its value is returned, the offender shall be punished with community service. It is the only mandatory community service provision in Indian law.

4. What happens if a convict does not perform the community service ordered? Section 8(4) of the Sanhita allows imprisonment in default of community service, of any description to which the offender might have been sentenced for the offence. Where the offence is punishable with fine or community service only, section 8(5) requires the default imprisonment to be simple and limits it to two months, four months or one year according to the amount of the fine.

5. Give two things about community service that the statute does not settle. The maximum number of hours that may be ordered, which other systems fix by statute; and the machinery of supervision, that is who assigns and supervises the work, who certifies its completion and who reports a breach. A third is the absence of any link to the probation service under the Probation of Offenders Act 1958, which is the natural body to administer it.

Where the sentence exceeds three months. The solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, again with intervals of not less duration.

A worked example

Iqbal is sentenced to two years' rigorous imprisonment, and the court orders three months' solitary confinement.

Is three months lawful? Yes as to quantum. The term exceeds one year, so section 11(c) permits up to three months, and three months is also the overall ceiling.

How may it be executed? Not as a block of three months. Because the imprisonment awarded exceeds three months, section 12 limits solitary confinement to seven days in any one month, with intervals of at least seven days. So the three months of solitary have to be spread across the two year sentence at a maximum rate of seven days a month.

Work that out and the arithmetic is striking. Three months is roughly ninety days. At seven days a month it takes about thirteen months of the sentence to deliver, and the prisoner never spends more than a week in solitude at a stretch. That is what the section is for.

Suppose the sentence had been four months. Section 11(a) applies only to terms not exceeding six months, so the ceiling is one month. And because the imprisonment awarded exceeds three months, the seven days a month rule in section 12 applies to that too.

What the courts have added

The statutory scheme is only half the law, and an answer that stops at sections 11 and 12 misses the part that matters most.

Solitary confinement is a separate and grave punishment, not a mode of custody. The Supreme Court has held that it may be imposed only by a court as part of a sentence, and that a prison authority which subjects a prisoner to solitary confinement of its own motion is inflicting a punishment it has no power to inflict. That is the subject of [Sunil Batra: Solitary Confinement and Bar Fetters].

A prisoner under sentence of death is not thereby in solitary confinement. Section 30(2) of the Prisons Act 1894 requires such a prisoner to be confined in a cell apart from all other prisoners and under the charge of a guard. That has been read as a requirement of security and supervision, not as an authority to impose solitary confinement on a prisoner whom no court has sentenced to it. See [The Prisoner Under Sentence of Death].

Section 29 of the Prisons Act 1894 is a safeguard, not a source of power. It provides that no cell shall be used for solitary confinement unless it is furnished with the means of enabling the prisoner to communicate at any time with an officer of the prison, and that a prisoner so confined for more than twenty four hours shall be visited at least once a day by the Medical Officer. In Maharashtra the words "or Medical Subordinate" in that section were replaced by "or any Officer authorised by the Medical Officer in this behalf" by Bombay Act XLV of 1894.

Solitary, separate and cellular confinement distinguished

Three different things share a resemblance and MU's Module IV depends on telling them apart.

Criticism

It is medically indefensible. The evidence that prolonged isolation damages mental health is not seriously contested, and international standards now treat solitary confinement beyond fifteen consecutive days as prohibited.

It serves no theory well. It cannot deter a person who is already imprisoned any more than the imprisonment does. It cannot reform. It is defensible, if at all, on a purely retributive footing, and even there it is difficult to say what offence deserves isolation rather than a longer sentence.

It is almost never awarded. Indian sentencing courts hardly ever order solitary confinement under section 11, so the practical law of solitude in Indian prisons is the prison discipline law in section 46 of the Prisons Act 1894, which is administered by the Superintendent and not by a judge. That is the real problem and it is what makes [Summary Punishment by the Superintendent] the chapter that matters.

Quick revision

• Sections 11 and 12 of the Bharatiya Nyaya Sanhita 2023, reproducing sections 73 and 74 of the Indian Penal Code.
• Only a court with power to award rigorous imprisonment may order it, and only as a portion of that sentence.
• Ceiling three months in the whole. Scale: one month if the term is up to six months; two months if over six months and up to a year; three months if over a year.
• Execution, section 12: never more than fourteen days at a time, with intervals of at least equal length; and where the sentence exceeds three months, never more than seven days in any one month, again with equal intervals.
• Section 29 of the Prisons Act 1894 requires the cell to allow communication with an officer and a daily medical visit after twenty four hours.
• Distinguish solitary confinement from separate confinement, section 46(8), and cellular confinement, section 46(10), both awarded by the Superintendent.

Test yourself

1. What is the maximum solitary confinement a court may order on a sentence of eight months' rigorous imprisonment, and how may it be executed? Two months, because the term exceeds six months and does not exceed one year, so section 11(b) applies. As to execution, section 12 applies twice over: never more than fourteen days at a time with intervals of at least equal length, and, because the imprisonment awarded exceeds three months, never more than seven days in any one month with intervals of at least seven days.

2. May a prison Superintendent order solitary confinement? No. Sections 11 and 12 of the Sanhita confer the power on the sentencing court. A Superintendent may award separate confinement under section 46(8) of the Prisons Act 1894 and cellular confinement under section 46(10), which are defined differently and are limited differently, but not solitary confinement.

3. Is a prisoner under sentence of death in solitary confinement? No, not by reason of the sentence. Section 30(2) of the Prisons Act 1894 requires such a prisoner to be confined in a cell apart from other prisoners and under the charge of a guard, which is a measure of security and supervision. Solitary confinement is a punishment which only a court may impose, and it may not be imposed on a condemned prisoner by the prison administration under cover of section 30.

4. Distinguish separate from cellular confinement. Separate confinement, section 46(8) of the Prisons Act 1894, secludes the prisoner from communication with but not from sight of other prisoners, allows not less than one hour's exercise a day and meals in association with one or more other prisoners, and may last up to three months. Cellular confinement, section 46(10), entirely secludes the prisoner from communication with but not from sight of others, may last up to fourteen days, and must be followed by an interval of not less duration before any further cellular or solitary confinement.

A subsequent offence under either of the same two chapters, punishable with the like imprisonment for the like term.

The consequence. For every such subsequent offence the offender is liable to imprisonment for life, or to imprisonment of either description which may extend to ten years.

Liable, not obliged. Section 13 raises the ceiling; it does not raise the floor and it does not oblige the court to impose more. A court which does impose an enhanced sentence must say why, and the previous conviction must have been proved.

How a previous conviction is proved and pleaded

The procedural half is in the Bharatiya Nagarik Suraksha Sanhita 2023 and is easily forgotten.

It must be charged. Where a person is liable to enhanced punishment by reason of a previous conviction, the charge must state the fact, the date and the place of the previous conviction. The Sanhita provides that such a charge may be read out only after the accused has been convicted of the subsequent offence, so that the trial of the later offence is not prejudiced by proof of the earlier one.

It must be proved. By the record of the previous conviction, or by a certificate of the officer having custody of the records of the prison in which the sentence was undergone, together with evidence of identity.

Other provisions on repeat offending

Section 13 is the general provision. Three others should be named in a complete answer.

Section 71 of the Sanhita, punishment for repeat offenders in sexual offences: a person previously convicted under section 64, 65, 66 or 70 and again convicted under any of them shall be punished with imprisonment for life meaning the remainder of natural life, or with death. That is a far graver enhancement than section 13 and it is mandatory in the sense that no lesser sentence is available.

Section 11 of the Protection of Civil Rights Act 1955, enhanced penalty on subsequent conviction under that Act.

Section 5 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989, enhanced punishment on a subsequent conviction under that Act.

And the procedural provision, section 394 of the Bharatiya Nagarik Suraksha Sanhita 2023, which allows a court convicting a person of an offence under Chapter X or Chapter XVII punishable with three years or more to order that their residence and any change of it be notified for a term not exceeding five years after release. That is dealt with in [Habitual Offender Legislation, and Surveillance].

A worked example

Zubair was convicted in 2019 of house-breaking, an offence under the chapter on offences against property punishable with imprisonment which may extend to more than three years, and served two years. In 2026 he is convicted of theft in a dwelling house, also an offence under that chapter punishable with three years or more.

Does section 13 apply? Yes. Both offences are under Chapter XVII, both are punishable with three years or more, and the earlier conviction was by a Court in India.

What sentence is available? Imprisonment for life, or imprisonment of either description up to ten years, for the subsequent offence, in place of the ordinary maximum.

What must the prosecution have done? Alleged the previous conviction in the charge, with its date and place, and proved it after the conviction for the subsequent offence.

Change the facts. If the 2019 conviction had been for causing grievous hurt, section 13 would not apply at all, because that offence is not under Chapter X or Chapter XVII. The previous conviction would still be a relevant sentencing circumstance under the ordinary law, but the enhanced ceiling would not be available.

What beginners get wrong

They think section 13 covers all repeat offenders. It covers repeat offending in coin and currency offences and in property offences. Nothing else.

They think it makes the enhanced sentence compulsory. It says the offender "shall be subject to", which raises the maximum. The court still chooses within the enlarged range.

They think it offends double jeopardy. It does not, because the sentence is passed for the later offence and the earlier conviction is a circumstance of the offender.

They forget the pleading rule. A previous conviction that was not charged and proved cannot be used to enhance the sentence.

Quick revision

• Section 13 of the Bharatiya Nyaya Sanhita 2023, successor to section 75 of the Indian Penal Code.
• Applies only where both the earlier and the later offence are under Chapter X, coin, currency-notes, bank-notes and Government stamps, or Chapter XVII, offences against property, and both are punishable with three years or more.
• Effect: liability to imprisonment for life, or imprisonment of either description up to ten years.
• The previous conviction must be charged, with date and place, and proved after conviction for the later offence.
• Other repeat offender provisions: section 71 of the Sanhita for sexual offences; section 11 of the Protection of Civil Rights Act 1955; section 5 of the Atrocities Act 1989; and section 394 of the Bharatiya Nagarik Suraksha Sanhita 2023 for notification of address.
• Not a breach of Article 20(2), because the sentence is for the later offence.

Test yourself

1. State section 13 of the Sanhita and identify the two chapters it refers to. It provides that a person previously convicted by a Court in India of an offence under Chapter X or Chapter XVII punishable with imprisonment of either description for three years or upwards, who is again guilty of an offence under either of those chapters punishable with like imprisonment for the like term, shall be subject for every such subsequent offence to imprisonment for life or to imprisonment of either description up to ten years. Chapter X is offences relating to coin, currency-notes, bank-notes and Government stamps. Chapter XVII is offences against property.

2. A man previously convicted of rape is convicted of rape again. Does section 13 apply? No. Neither offence is under Chapter X or Chapter XVII. What applies is section 71 of the Sanhita, which provides that a person previously convicted under section 64, 65, 66 or 70 and subsequently convicted under any of them shall be punished with imprisonment for life meaning the remainder of natural life, or with death.

3. Does an enhanced sentence for a repeat offender violate the rule against double jeopardy? No. Article 20(2) forbids prosecution and punishment for the same offence more than once. The enhanced sentence is imposed for the later offence, and the previous conviction operates only as a circumstance relevant to the offender's culpability and to the risk of further offending. The offender is not punished again for the earlier offence.

4. What must be done procedurally before a previous conviction can enhance a sentence? It must be stated in the charge, with the date and the place of the previous conviction, and it must be proved, ordinarily by the record of the conviction or a certificate of the officer having custody of the prison records, together with evidence of identity. The charge as to the previous conviction is read and dealt with only after the accused has been convicted of the subsequent offence.

The second illustration. While A is beating Z, Y interferes and A intentionally strikes Y. The blow to Y is no part of the act by which A caused hurt to Z, so A is liable to one punishment for the hurt to Z and to another for the blow to Y.

The illustrations are the whole rule and reproducing one of them is the best way to answer a question on section 9.

Section 10

Where a judgment is given that a person is guilty of one of several offences specified in the judgment, but it is doubtful of which of them, the offender shall be punished for the offence for which the lowest punishment is provided, if the same punishment is not provided for all.

This is a rule for a very particular situation. It is not a rule about doubt as to guilt, which is dealt with by the standard of proof. It is a rule about doubt as to which of several established offences the proved facts amount to. Where the facts prove either theft or criminal breach of trust but the court cannot say which, the offender is punished for whichever carries less.

The constitutional limit: Article 20(2)

No person shall be prosecuted and punished for the same offence more than once.

Three points, and each is a place candidates lose marks.

Both limbs are required. The Article protects against a second prosecution and punishment. A person who was acquitted, or whose earlier proceeding did not end in punishment, has to look to the statutory rule rather than to the Article.

Same offence, not same act. The test is whether the ingredients of the two offences are the same. One act may constitute two distinct offences with different ingredients, and prosecution for both is not barred.

The statutory counterpart is wider. Section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023, the rule that a person once convicted or acquitted is not to be tried for the same offence, protects an acquitted person as well and is the provision actually pleaded in a criminal court.

The other constitutional limit: Article 20(1)

Not the same rule and frequently confused with it. Article 20(1) has two parts.

No conviction except for a law in force at the time. A person cannot be convicted of an act that was not an offence when it was done.

No penalty greater than that which might have been inflicted under the law in force at the time of the offence. This is the limit that decides which punishment list applies to an offence committed before 1 July 2024, and it is why community service is unavailable for an offence committed before that date, as [The Sources of Indian Penal Law Today] explains.

A worked example

Farida breaks into a shop at night and steals cash. She is charged with house-breaking by night, with theft, and with mischief for the broken lock.

Section 9(1)? House-breaking by night is made up of parts, and house-trespass is itself an offence. She cannot be punished both for house-breaking by night and for the house-trespass that is a part of it.

Section 9(2)(a)? If the same conduct fell within two separate definitions, the total punishment cannot exceed what could be awarded for any one of them.

Theft and mischief? These are separate acts producing separate harms, so the second illustration to section 9 applies by analogy: she may be punished for each.

Consecutive or concurrent? That is a different question, governed by section 25 of the Bharatiya Nagarik Suraksha Sanhita 2023, and it is dealt with in [Concurrent and Consecutive Sentences].

If she is later prosecuted again for the same theft? Article 20(2) and section 337 of the Bharatiya Nagarik Suraksha Sanhita bar it.

What beginners get wrong

They treat section 9 as a rule about charges. It is not. A person may be charged with several offences arising out of one transaction and may be convicted of several. Section 9 limits the punishment.

They treat Article 20(2) as covering acquittals. It does not, because it requires prosecution and punishment. The statutory rule in section 337 of the Bharatiya Nagarik Suraksha Sanhita covers an acquittal.

They confuse section 10 with the benefit of the doubt. Section 10 assumes guilt of one of several specified offences and resolves which punishment applies. The benefit of the doubt operates on whether the person is guilty at all.

Quick revision

• Section 9(1) of the Bharatiya Nyaya Sanhita 2023: one punishment for an offence made up of parts which are themselves offences, unless expressly provided otherwise. Illustration: fifty blows, one beating, one punishment.
• Section 9(2): where one act falls within two definitions, or several acts combine into a different offence, the punishment shall not exceed what the court could award for any one of them.
• Section 10: where it is doubtful which of several specified offences was committed, the offender is punished for the one carrying the lowest punishment.
• Article 20(2): no prosecution and punishment for the same offence more than once. Section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023 is the wider statutory rule and covers acquittals.
• Article 20(1): no retrospective offence, and no penalty greater than the law in force at the time allowed.

Test yourself

1. Reproduce the illustration to section 9(1) and say what it establishes. A gives Z fifty strokes with a stick. A may have committed the offence of voluntarily causing hurt by the whole beating and also by each of the blows. If A were liable to punishment for every blow he might be imprisoned for fifty years, one for each blow, but he is liable to only one punishment for the whole beating. It establishes that where an offence is made up of parts which are themselves offences, only one punishment may be awarded unless the law expressly provides otherwise.

2. What does section 10 provide, and how does it differ from the benefit of the doubt? It provides that where a judgment finds a person guilty of one of several specified offences but it is doubtful which, the offender shall be punished for the offence carrying the lowest punishment where the punishments differ. The benefit of the doubt concerns whether the accused is guilty at all and results in acquittal. Section 10 applies where guilt of one of the specified offences is established and only the identification of the offence is uncertain.

3. Article 20(2) is narrower than the statutory rule. Explain. Article 20(2) requires both prosecution and punishment for the same offence, so it does not protect a person who was tried and acquitted. Section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023 protects a person once convicted or acquitted from being tried again for the same offence, and is therefore wider and is the provision usually pleaded.

4. Why is Article 20(1) relevant to a paper on punishment? Because it fixes which list of punishments applies. A person cannot be subjected to a penalty greater than that which could have been inflicted under the law in force when the offence was committed, so an offence committed before 1 July 2024 is punishable only by the punishments the Indian Penal Code then allowed, and community service, added by section 4(f) of the Bharatiya Nyaya Sanhita 2023, is unavailable for it.

Two changes, and both matter.

A death sentence may now be commuted only to imprisonment for life. Under the old provision it could be commuted to any punishment the Penal Code provided, which included a term of years. The executive's discretion has been narrowed.

A life sentence is now commuted to a term of not less than seven years, where it used to be a term not exceeding fourteen. The old provision was a ceiling and the new one is a floor, with no stated maximum. A book written before 1 July 2024 states the opposite of the present law.

Any answer that quotes "not exceeding fourteen years" as the current rule is wrong, and the mistake is easy to make because almost every commentary in circulation was written before the change.

Commutation distinguished from remission and pardon

Who is the appropriate Government

Three provisions have to be read together and a question about a Presidential or State commutation is answered by them.

Section 5 of the Sanhita, whose Explanation is set out above.

Section 476 of the Bharatiya Nagarik Suraksha Sanhita 2023: the powers under sections 473 and 474 conferred on the State Government may, in the case of sentences of death, also be exercised by the Central Government. So both Governments have the power over a death sentence.

Section 477: where the sentence is for an offence investigated by an agency empowered under a Central Act other than the Sanhita, or involving misappropriation or damage to Central Government property, or committed by a person in the service of the Central Government acting in the discharge of duty, the State Government may not remit or commute except after concurrence with the Central Government.

The word in section 477 is concurrence. Its predecessor, section 435 of the Code of Criminal Procedure 1973, said consultation. That is a real strengthening: the Centre's agreement is now required, not merely its opinion.

The restriction in section 475

Section 475 provides that where a life sentence was imposed for an offence for which death is one of the punishments provided by law, or where a death sentence has been commuted under section 474 into one of imprisonment for life, the person shall not be released unless they have served at least fourteen years.

Note how sections 474 and 475 interact. A death sentence commuted under section 474(a) becomes life imprisonment, and section 475 then requires fourteen years to be served before release. That is the statutory floor which the courts have built on in the fixed-term life sentence cases in [Life Without Remission: Shraddananda and Sriharan].

A worked example

Rahim is sentenced to death for murder by a Sessions Court in Maharashtra and the sentence is confirmed by the High Court. His appeal and review fail and his mercy petition is decided by the President, who commutes the sentence.

Which Government could act? Both. Section 5 of the Sanhita makes the Central Government the appropriate Government for a sentence of death; section 476 of the Bharatiya Nagarik Suraksha Sanhita preserves the State Government's power over a death sentence as well; and Articles 72 and 161 give independent constitutional powers to the President and the Governor.

To what may the sentence be commuted? Imprisonment for life, and nothing else, under section 474(a). The President acting under Article 72 is not confined by section 474 at all, because Article 72 is a constitutional power that a statute cannot cut down.

When may he be released? Not before fourteen years, because section 475 applies to a death sentence commuted under section 474 into imprisonment for life.

May the State later commute the life sentence to a term? Yes, under section 474(b), and the term must be not less than seven years, but section 475 still bars actual release before fourteen years have been served.

Quick revision

• Section 5 of the Bharatiya Nyaya Sanhita 2023: the appropriate Government may commute any punishment, without the offender's consent, in accordance with section 474 of the Bharatiya Nagarik Suraksha Sanhita 2023.
• Section 474: death to life only; life to a term not less than seven years; seven years or more to not less than three years; less than seven years to fine; rigorous to simple.
• The old section 433 of the Code of Criminal Procedure 1973 allowed death to be commuted to any punishment in the Penal Code, and life to a term not exceeding fourteen years or a fine. The new provision reverses the second and narrows the first.
• Section 476: the Central Government also has the power in a death sentence case.
• Section 477: concurrence, not merely consultation, of the Central Government is required in the three classes it names.
• Section 475: fourteen years must be served before release where the offence could have carried death or where a death sentence was commuted.
• Commutation changes the kind of punishment; remission changes the quantum; pardon wipes out the sentence and its consequences.

Test yourself

1. To what may a sentence of death be commuted under the Sanhita, and how has that changed? Under section 474(a) of the Bharatiya Nagarik Suraksha Sanhita 2023 it may be commuted only to imprisonment for life. Under section 433(a) of the Code of Criminal Procedure 1973 it could be commuted to any other punishment provided by the Indian Penal Code, which was much wider.

2. To what may a sentence of imprisonment for life be commuted, and what is the trap? To imprisonment for a term not less than seven years, under section 474(b). The trap is that the old provision, section 433(b) of the Code of Criminal Procedure 1973, allowed commutation to a term not exceeding fourteen years or to a fine. The new provision states a minimum where the old stated a maximum, so every pre-2024 book states the rule the wrong way round.

3. Distinguish commutation from remission. Commutation substitutes a punishment of a different kind for the one imposed, for example imprisonment for life in place of death. Remission reduces the quantum of the punishment without altering its kind, for example releasing a convict before the sentence expires. Commutation is governed by section 5 of the Sanhita and section 474 of the Bharatiya Nagarik Suraksha Sanhita; remission by section 473 and by the prison rules.

4. In what cases must a State Government obtain the Centre's concurrence before commuting? Under section 477 of the Bharatiya Nagarik Suraksha Sanhita 2023, where the sentence is for an offence investigated by an agency empowered under a Central Act other than the Sanhita, or which involved misappropriation, destruction or damage to Central Government property, or which was committed by a person in the service of the Central Government while acting or purporting to act in the discharge of official duty. The predecessor provision required only consultation, so this is a strengthening of the Centre's position.

A student asked to define community service should cite the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita 2023, not section 4(f) of the Bharatiya Nyaya Sanhita, which merely lists it.

Sentence in default of fine: section 24

A Magistrate may award such term of imprisonment in default of payment of a fine as is authorised by law, provided that the term is not in excess of the Magistrate's powers under section 23, and that where imprisonment has been awarded as part of the substantive sentence, the default term shall not exceed one fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default.

Sub-section (2): the default imprisonment may be in addition to a substantive sentence of imprisonment for the maximum term the Magistrate may award under section 23.

Read that carefully, because it produces a result students find surprising. A Magistrate of the first class may award three years' imprisonment, the maximum, and a default term on top of it. The default term is limited to one fourth of what the Magistrate is competent to inflict, that is one fourth of three years, or nine months. So the total custody may reach three years and nine months even though the Magistrate's sentencing power is three years.

Compare section 8(3) of the Bharatiya Nyaya Sanhita, which limits the default term to one fourth of the maximum fixed for the offence. Section 24 limits it to one fourth of the maximum the Magistrate may inflict. Where the offence carries more than the Magistrate can award, the Magistrate's own limit is the operative one.

Several offences at one trial: section 25

Sub-section (1). When a person is convicted at one trial of two or more offences, the court may, subject to section 9 of the Bharatiya Nyaya Sanhita 2023, sentence them to the several punishments prescribed which the court is competent to inflict, and the court shall, considering the gravity of offences, order the punishments to run concurrently or consecutively.

Those five words are new. Section 31 of the Code of Criminal Procedure 1973 provided that consecutive running was the default and the court could direct concurrent running. Section 25 requires the court to make a positive choice, and to make it by reference to the gravity of the offences. That is a small but genuine improvement in sentencing discipline, and it is worth a sentence in an answer about India's want of a sentencing policy.

Sub-section (2). In the case of consecutive sentences the court need not send the offender to a higher court merely because the aggregate exceeds what it could award for a single offence, provided that

• in no case shall the person be sentenced to imprisonment for a longer period than twenty years; and
• the aggregate shall not exceed twice the punishment the court is competent to inflict for a single offence.

The twenty year cap is also new. The corresponding proviso to section 31(2) of the Code of Criminal Procedure 1973 read fourteen years. Parliament has raised the aggregate ceiling by six years.

Sub-section (3). For the purpose of appeal, the aggregate of consecutive sentences is deemed to be a single sentence.

A worked example

A Magistrate of the first class convicts Shalini at one trial of three offences, each punishable with imprisonment which may extend to five years.

What may the Magistrate award for each? Not more than three years, because section 23(2) caps the Magistrate's power at three years however high the offence's own maximum is.

Consecutively? Yes, but section 25(2) caps the aggregate at twice what the Magistrate may inflict for a single offence, that is six years, and separately at twenty years. Six years is the operative limit.

Must the Magistrate choose? Yes. Section 25(1) requires the court, considering the gravity of the offences, to order concurrent or consecutive running.

And a fine with a default term? Yes, up to fifty thousand rupees under section 23(2), with a default term of up to nine months under section 24, which may be added to the substantive sentence.

If the offences had carried ten years each? The Magistrate would be bound to consider committing the case, because section 364 of the Bharatiya Nagarik Suraksha Sanhita permits a Magistrate who, after hearing the evidence, is of opinion that the accused deserves a punishment beyond the Magistrate's powers to forward the accused to the Chief Judicial Magistrate.

What beginners get wrong

They read the offence's maximum as the court's maximum. The court's own competence caps it. An offence carrying ten years tried by a first class Magistrate can attract no more than three.

They think a default term is inside the sentencing ceiling. Section 24(2) says it may be in addition to the maximum term.

They think consecutive running is still the default. Section 25(1) now requires an express choice made by reference to the gravity of the offences.

They quote fourteen years as the aggregate cap. That was section 31(2)(a) of the Code of Criminal Procedure 1973. Section 25(2)(a) says twenty years.

Quick revision

• Section 22: High Court, any sentence; Sessions Judge, any sentence but death subject to High Court confirmation.
• Section 23: Chief Judicial Magistrate, anything except death, life or over seven years; first class Magistrate, three years, fifty thousand rupees, or community service; second class Magistrate, one year, ten thousand rupees, or community service.
• The Explanation to section 23 is the definition of community service.
• Section 24: a Magistrate's default term must be within their powers and not more than one fourth of what they may inflict for the offence, and it may be added to the maximum substantive sentence.
• Section 25: the court must consider the gravity of the offences and order concurrent or consecutive running; consecutive sentences are capped at twenty years, and at twice what the court may award for one offence.
• Two changes from the Code of Criminal Procedure 1973: the aggregate cap rose from fourteen to twenty years, and concurrent or consecutive running is now an express judicial choice.

Test yourself

1. What is the maximum sentence a Magistrate of the first class may pass? Imprisonment for a term not exceeding three years, or a fine not exceeding fifty thousand rupees, or both, or community service: section 23(2) of the Bharatiya Nagarik Suraksha Sanhita 2023.

2. May a first class Magistrate's total order of custody exceed three years? Yes. Section 24(2) provides that imprisonment in default of a fine may be in addition to a substantive sentence of imprisonment for the maximum term the Magistrate may award, and section 24(1)(b) limits the default term to one fourth of what the Magistrate is competent to inflict for the offence. Three years plus a nine month default term is therefore possible.

3. State the two limits on consecutive sentences under section 25. In no case shall the person be sentenced to imprisonment for a longer period than twenty years, and the aggregate punishment shall not exceed twice the amount of punishment which the court is competent to inflict for a single offence.

4. Where is community service defined, and why is that surprising? In the Explanation to section 23 of the Bharatiya Nagarik Suraksha Sanhita 2023, which is a provision about the sentencing powers of Magistrates. It is surprising because the punishment itself is created by section 4(f) of the Bharatiya Nyaya Sanhita 2023, which does not define it, so the definition of a punishment sits in the procedural statute.

The purpose is order, not vengeance. The texts give several purposes: to restrain the wrongdoer, to deter others, to purify the offender, and to protect the good. All four of the modern theories of punishment can be found in the Dharmasastra material, which is a point worth making in an answer and which is developed in [What the Classical Approaches Are Worth Today].

Purification. A punishment properly borne was held to remove the sin, so that the offender was restored rather than permanently degraded. That is the classical Indian version of the expiation theory in [The Expiation Theory], and it is the strongest link between this material and the rest of Module I.

The four forms of danda

The literature classifies punishment into four kinds, in ascending order of severity.

Note the order. The lightest is a word of warning and the second is a public reproach. A system that begins its scale of punishments with admonition and censure is closer to the modern law of probation than to anything in nineteenth century England. Section 3 of the Probation of Offenders Act 1958 is release after admonition, and the parallel is exact enough to be worth drawing in an answer.

The limits the texts impose

This is where a good answer separates itself, because the popular picture of Hindu punishment is of savagery, and the texts themselves are full of restraint.

Proportion. Punishment must be proportionate to the offence. Manu is explicit that the king who punishes those who do not deserve punishment, and does not punish those who do, incurs great infamy and goes to hell.

Deliberation. The king must inflict danda only after full consideration, having regard to the motive, the time and place, the strength and the learning of the offender.

Danda destroys the unjust punisher. The recurring warning is that the rod, wrongly wielded, destroys the king who wields it together with his family. That is a doctrine of accountability, expressed in religious rather than institutional terms.

Gradation by circumstance. The texts grade punishment by the offender's knowledge, by whether the act was repeated, and by the offender's capacity, which is individualisation of a kind.

The feature that must not be omitted

The classical texts grade punishment by varna, that is by the social class of the offender and of the victim, and they do so openly and to the disadvantage of the lower classes.

Any honest answer says this. There are two reasons to say it rather than to pass over it.

It is what the texts say, and a treatment that presents the classical system as uniformly humane is not a description of it.

It is what makes the utility question real. MU asks what these approaches are worth in the present system, and the answer has to reckon with the fact that a system built on graded liability by birth is flatly inconsistent with Article 14 of the Constitution. What survives is the reasoning about proportion, about purification and about the duty to punish, not the scale of liability.

The point is not merely historical. The Supreme Court has in recent years struck down prison manual provisions which assigned work in Indian prisons by caste, and that is dealt with in [Caste in the Prison].

A worked example

Take a theft, as the Dharmasastra would treat it.

The classification. Theft is among the offences for which the texts prescribe punishment ranging from fine to mutilation, and the scale rises with the value of the property and with repetition.

The graded factors. The offender's knowledge of the wrong, whether it is a first or repeated offence, the value taken, the relationship of the offender to the victim, and, in the classical texts, the varna of both.

The purification element. The punishment borne is treated as expiating the sin, so the thief who has been punished is not thereafter to be reproached with the theft. Compare section 12 of the Probation of Offenders Act 1958, which removes the disqualification attaching to a conviction, and the parallel becomes visible.

Where the modern lawyer parts company. The grading by varna. Article 14 forbids it, Article 15 forbids discrimination on the ground of caste, and the modern law grades by the offence and by the offender's culpability alone.

Quick revision

• Danda means the rod, and stands for the instrument, the act and the principle of coercive authority.
• Matsya nyaya, the law of the fishes: without danda the strong devour the weak.
• Punishment is the king's dharma, a duty and not a policy. A king who fails to punish shares the sin.
• Four forms in ascending order: vak-danda admonition, dhik-danda censure, dhana-danda fine, vadha-danda corporal punishment including death.
• Purposes found in the texts: restraint, deterrence, purification and protection of the good, which map onto all four modern theories.
• Limits: proportion, deliberation, and the warning that danda wrongly inflicted destroys the king.
• Punishment is graded by varna, which is inconsistent with Articles 14 and 15 and must be stated rather than passed over.

Test yourself

1. What does danda mean, and in what three senses is it used? It means the rod or staff. It is used for the instrument itself, for the act of punishing, and for the principle of coercive authority on which the maintenance of order is held to depend.

2. State the four forms of danda in order. Vak-danda, admonition; dhik-danda, censure or public reproach; dhana-danda, fine; and vadha-danda, corporal punishment including mutilation and death.

3. Why is punishment described as the king's dharma rather than as his policy? Because the texts impose it as a duty. Danda is the means by which the king discharges his obligation to protect his subjects, and a king who fails to punish an offender is held to incur the sin of the offence himself. It is therefore not open to him to decide against punishing, as it would be if punishment were a matter of policy.

4. Give two limits the classical texts place on the king's power to punish. Proportion: the punishment must fit the offence, and the king who punishes the undeserving or spares the deserving incurs infamy. And deliberation: danda must be inflicted only after full consideration of the motive, the time and place, and the circumstances of the offender. The texts add the warning that danda wrongly wielded destroys the king and his family, which is a doctrine of accountability in religious form.

5. Why must an answer mention the grading of punishment by varna? Because the texts do it openly, so an account that omits it is not a description of the system. And because the University's question is about the utility of the classical approach in the present system, and the answer to that question turns on separating what survives, the reasoning about proportion, purification and the duty to punish, from what cannot survive Articles 14 and 15 of the Constitution.

The value involved. Property offences are graded by the value of what was taken, exactly as section 303 of the Bharatiya Nyaya Sanhita 2023 now grades theft by whether the value is under five thousand rupees.

Repetition. The texts prescribe heavier punishment for a repeated offence, which is the classical ancestor of the recidivism provisions in [Provisions for Sentencing a Recidivist].

Knowledge and intention. Punishment is graded by whether the offender knew what they were doing, which is culpability in the modern sense.

Capacity to pay. Fines are graded to the offender's means. That is the day fine principle, which most modern systems including India's have not adopted, and it is one of the strongest arguments in the utility question.

Status. And varna, openly, with the graded liability that [The Classical Hindu Approach: Danda] records and that Articles 14 and 15 of the Constitution now forbid.

The scale of punishments in practice

Fines are the commonest punishment in the texts and are set out in detailed schedules. The Arthasastra in particular reads like a tariff.

Corporal punishment is prescribed for specified offences and includes branding, mutilation and, for the gravest offences, death.

Banishment appears as a punishment in its own right, and it is the classical Indian equivalent of transportation.

Confiscation of property is provided for in certain cases.

Admonition and censure, the first two forms of danda, are the lightest and are used for minor offences and for first offenders.

Imprisonment is not a principal punishment. The classical texts know prisons, and the Arthasastra provides for them, but they are places of detention pending trial or execution rather than places in which a sentence is served. That is the single largest difference from the modern system, and it is the same difference that separates medieval Europe from the modern prison, as [A Short History of Punishment] shows.

Prayaschitta: penance

This is the part of the classical material that has no modern equivalent, and it is the part MU's question about utility is really about.

Prayaschitta is expiation undertaken by the offender: fasting, gifts, pilgrimage, recitation, and in the gravest cases a course of conduct lasting years. It is graded by the offence and by the offender's knowledge and intention, and it is administered by the community and by learned persons rather than by the king.

Three features are worth naming.

It is voluntary in form. The offender undertakes it, which distinguishes it from punishment as the four marks in [The Five Marks of a Punishment] define it.

It restores the offender to the community. The completion of prayaschitta ends the offender's exclusion, so the classical system has an explicit mechanism of reintegration that Indian criminal law has never had.

It runs alongside the king's punishment rather than instead of it. A person who has been punished may still undergo penance, and a person who undergoes penance may still be punished.

A worked example

A man of ordinary means steals a cow, is caught, and confesses.

The king's punishment. A fine graded by the value of the animal and by the offender's means, with corporal punishment reserved for a repetition or for an offence committed with violence. The texts require the stolen property to be restored to the owner, which is restitution rather than punishment.

Aggravation and mitigation. Was it a first offence? Was there stealth or force? Did the offender know the beast was another's? Could he pay? Each is a graded factor and each has a counterpart in modern sentencing.

Prayaschitta. A penance appropriate to the offence, undertaken by the offender and administered by learned men, whose completion restores him to his standing in the community.

Where the modern system differs. It has no prayaschitta, so a convicted person carries the conviction indefinitely unless a court exercises the power in section 12 of the Probation of Offenders Act 1958 to remove the disqualification attaching to it. That is the single most useful comparison an answer can draw.

What beginners get wrong

They treat Manu as Hindu law. The Manusmriti is one text among several and it is not the most practical of them. The Arthasastra takes a different view on several questions and the digests took a different view again.

They present the system as either humane or savage. It is both, and an answer that acknowledges the graded liability by varna and the reasoning about proportion and expiation is more accurate than one that picks a side.

They assume the classical system used imprisonment. It did not use it as a punishment.

They forget prayaschitta. It is the most distinctive contribution the classical system makes to a penology paper and it is the one most often left out.

Quick revision

• Sources: the Manusmriti, Yajnavalkya Smriti and Narada Smriti; and Kautilya's Arthasastra, which is statecraft rather than dharma and is more severe and more practical.
• Grading factors: gravity, value, repetition, knowledge and intention, capacity to pay, and varna.
• Fines are the commonest punishment; corporal punishment, banishment, confiscation and death for the graver offences.
• Imprisonment is not a punishment in the classical system; prisons hold people pending trial or execution.
• Prayaschitta is penance undertaken by the offender, graded by the offence, administered by the community, and completed by restoration to standing.
• The nearest modern analogue to restoration is section 12 of the Probation of Offenders Act 1958, which removes the disqualification attaching to a conviction.

Test yourself

1. Name the principal classical sources and distinguish them. The Smritis, principally the Manusmriti, the Yajnavalkya Smriti and the Narada Smriti, which are treatises on dharma and treat punishment as part of duty; and Kautilya's Arthasastra, which is a manual of statecraft written from the ruler's point of view and is in places more severe and much more practical. The medieval digests, including the Vyavaharamayukha in western India, carried the classical law forward.

2. List four factors by which the classical texts graded punishment. The gravity of the act, including whether it was completed or attempted and whether it was open or stealthy; the value of the property involved; whether it was a repeated offence; the offender's knowledge and intention; and the offender's capacity to pay a fine. Status by varna was a sixth, and it is inconsistent with Articles 14 and 15 of the Constitution.

3. What is prayaschitta and why does it matter to this paper? It is expiation undertaken by the offender, graded by the offence and by their knowledge, administered by the community rather than by the king, and completed by restoration to standing. It matters because it gives the classical system an explicit mechanism of reintegration, which the modern Indian criminal process lacks, and because it is the doctrinal root of the expiation theory of punishment.

4. What did the classical system use prisons for? For detention pending trial or execution, not as a place in which a sentence was served. Imprisonment as a punishment in itself is a modern development, and its absence from the classical Indian system is the single largest difference between the two.

The three options. The right-holder may demand qisas, that is retaliation in kind; may accept diya, blood money, a compensation fixed by law; or may forgive outright, in which case the offender is released from the primary penalty although the ruler may impose a tazir punishment in the public interest.

The victim's power to forgive is the single most striking feature of the system to a modern lawyer, because in the modern criminal process a murder is an offence against the state and no forgiveness by the family affects the prosecution. The comparison is developed in [Why the State Alone Punishes].

Tazir

What it is. Correction or chastisement. It is the discretionary category and it covers everything the first two do not.

Whose right. It may be a right of God, a right of an individual, or both, and the ruler or the judge decides.

The punishment. Discretionary as to kind and quantum. Admonition, reprimand, fine, imprisonment, banishment and lashes were all available, and the classical jurists debated the limits.

Tazir is the class that matters most for a penology paper, because it is the only one that involves what a modern lawyer would call sentencing discretion, and because in practice the great majority of offences in any Islamic legal system fell into it. It is also the class in which imprisonment, banishment and reformative measures appear.

The classes in a table

Diya, the blood money

Diya deserves separate treatment because it is the classical system's institutionalised alternative to punishment, and it has no counterpart in Indian criminal law.

It is a fixed compensation, payable to the victim or the heirs, in place of retaliation. Its amount is laid down and the classical texts differ on whether and how it varies. Where the killing was unintentional, diya rather than qisas is the primary remedy.

Compare section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, which permits a court to order compensation to the victim out of a fine, and section 396, the victim compensation scheme. Indian law reached institutionalised compensation for the victim of a homicide only in the late twentieth century, and the classical Islamic system had it from the beginning. That is the strongest point in the utility argument for this half of the question.

A worked example

A intentionally kills B. B leaves two adult heirs.

Classification. Intentional homicide, a qisas offence.

Who decides. The court determines liability. The choice of remedy belongs to the heirs.

The three outcomes. If the heirs demand qisas, retaliation follows. If they accept diya, A pays the fixed compensation. If they forgive, the qisas right is extinguished, though the ruler may impose a tazir punishment because a homicide also disturbs public order.

If the killing had been unintentional? Diya is the primary remedy, and there is no qisas.

Compare Indian law. Murder is an offence against the state under section 103 of the Bharatiya Nyaya Sanhita 2023. It is not compoundable, the family's forgiveness does not end the prosecution, and the family's only financial remedy is compensation under section 395 or the state scheme under section 396.

The limits and the criticism

Three things a candid answer says.

The hadd punishments are corporal and in some cases capital, and they are fixed. Amputation for theft and stoning for unlawful intercourse are inconsistent with Article 21 of the Constitution as it has been interpreted and with the international instruments India has accepted.

The evidentiary rules that limited hadd in practice are as important as the punishments, and an answer that describes the penalties without describing the proof required gives a false picture of how the system operated.

Diya has been criticised as favouring the wealthy, because a rich offender can pay where a poor one cannot, so the same offence produces retaliation for one and compensation for another. The reply is that the choice belongs to the victim's family, not to the offender, and that a modern fine has exactly the same defect.

Quick revision

• Three classes: hadd, qisas, tazir, distinguished by whose right is violated.
• Hadd: punishment fixed by revelation, a right of God, no pardon and no discretion, but a very high standard of proof and averted by doubt. Offences usually listed: theft, highway robbery, unlawful sexual intercourse, false accusation of it, drinking wine, and in most accounts apostasy and rebellion.
• Qisas: homicide and bodily injury. The right belongs to the victim or the heirs, who may demand retaliation, accept diya, or forgive.
• Tazir: everything else, discretionary as to offence and punishment, and the class where imprisonment and reformative measures appear.
• Diya is fixed compensation in place of retaliation, and it is the classical system's institutionalised victim compensation.
• Compare sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita 2023, which are Indian law's much later arrival at the same idea.

Test yourself

1. State the three classes of offence in classical Islamic law and the basis of the classification. Hadd, qisas and tazir. The classification is by whose right the offence violates: hadd offences violate a right of God, that is a public right, and carry a punishment fixed by revelation; qisas offences violate the right of the victim or the heirs and carry retaliation, blood money or forgiveness at their choice; and tazir covers all other offences and is discretionary as to both the offence and the punishment.

2. Why were hadd punishments rarely inflicted? Because the punishment being fixed, the system controlled it through the requirements of proof rather than through the sentence. The standard of proof for a hadd offence is extraordinarily high, and the governing principle is that a hadd punishment is averted by doubt, so a case that fell short of the required proof was dealt with as tazir instead.

3. What are the three options open to the heirs of a homicide victim? To demand qisas, that is retaliation; to accept diya, the fixed blood money; or to forgive outright, in which case the primary penalty falls away although the ruler may impose a tazir punishment in the public interest.

4. Which class matters most to a penology paper, and why? Tazir. It is the only class involving what a modern lawyer would call sentencing discretion, it covered the great majority of offences in practice, and it is where imprisonment, banishment and corrective measures appear. Hadd has no discretion and qisas leaves the choice to the victim's family, so neither raises the sentencing questions this paper is about.

5. What is the closest thing in Indian law to diya, and how late did it arrive? Compensation to the victim, ordered by a court under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, and the victim compensation scheme under section 396. Their predecessors, sections 357 and 357A of the Code of Criminal Procedure 1973, arrived in 1973 and in 2009 respectively, so institutionalised compensation for the victim of a homicide is a very recent feature of Indian criminal law.

That is the whole answer to the question of how a system with fixed corporal penalties functioned, and it takes three sentences.

Pardon and settlement

In hadd, no pardon. Because the right is God's, neither the victim nor the ruler may waive it once the offence is proved. But the ruler may decline to prosecute, and the offender may avoid the penalty by repentance in some accounts.

In qisas, pardon is the right-holder's and it is absolute as to the primary penalty. The heirs may forgive with or without diya, and the classical texts encourage forgiveness.

In tazir, the ruler may pardon at any stage.

Diya worked through

Diya is fixed compensation in place of retaliation, and three features are worth naming.

It is fixed by law, not assessed. The classical amount is expressed in camels or in their monetary equivalent, and it does not vary with the victim's earning capacity. That is different in principle from a modern damages award and closer to a statutory scheme like section 396 of the Bharatiya Nagarik Suraksha Sanhita 2023.

The offender's kin may be liable. In cases of unintentional homicide the classical law places the liability on the aqilah, the offender's solidarity group, so the burden is spread. That is an early form of what modern law achieves through insurance and through state compensation funds.

It converts a criminal remedy into a civil one. The classical system therefore has, built into it, a route by which a homicide is resolved by payment. Modern Indian law has nothing equivalent for a homicide: murder is not compoundable under section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, and the family's forgiveness does not affect the prosecution.

The place of imprisonment

As in the classical Hindu system, imprisonment is not a principal punishment. It appears within tazir, and it appears as detention of a debtor and of a person pending trial. The prison as an institution in which a sentence is served is a modern development in this tradition too.

A worked example

A is accused of theft from a locked shop.

Is it hadd? Theft is a hadd offence, but the classical law requires the property to have been taken from a place of safekeeping, to exceed a minimum value, and to belong to another with no colour of right in the taker. Each requirement is a place where doubt may arise.

Proof. Two adult male witnesses of good character to the act, or a confession.

Doubt. If A can show a plausible claim to the property, or a share in it, or that the shop was not properly secured, or if the witnesses differ, the hadd penalty is averted.

What then? The conduct is dealt with under tazir, where the judge may impose a fine, imprisonment, lashes or banishment according to the circumstances, and where the value taken must in any event be restored.

Compare Indian law. Theft is section 303 of the Bharatiya Nyaya Sanhita 2023. There is one offence, one standard of proof, and a discretionary sentence, with a mandatory community service disposal for a petty first offence where the property is returned. The Indian system varies the sentence; the classical Islamic system varied the classification.

The utility question

MU asks about utility in the present system, and there are three honest answers on this side.

What cannot be carried over. The fixed corporal and capital penalties. They are inconsistent with Article 21 as it is now read and with the international obligations India has accepted.

What can. Three things. The proportioning of the standard of proof to the severity of the penalty, which Indian law reflects only weakly, in the confirmation requirement for a death sentence and in the special reasons rule. The institutionalised compensation of the victim, which Indian law reached in 1973 and 2009. And the structured place of the victim's own choice in the disposal of the case, which Indian law admits only through compounding of minor offences and through victim impact material at the sentencing stage.

What is genuinely difficult. The victim's power to forgive a homicide. It gives the family a standing the modern system denies them, and it also makes the outcome depend on the family's means and disposition rather than on the gravity of the offence. Both halves of that should appear in a good answer.

Quick revision

• The severity of hadd was controlled by proof, not by sentence. A very high evidentiary standard, the principle that doubt averts the hadd, and the availability of tazir where hadd proof failed.
• Four witnesses to the act for unlawful sexual intercourse; a retracted confession defeats a hadd in most schools.
• Hadd cannot be pardoned; qisas may be forgiven by the right-holder; tazir may be pardoned by the ruler.
• Diya is fixed compensation, may be borne by the offender's solidarity group in unintentional homicide, and converts a criminal remedy into a civil one.
• Imprisonment is a tazir measure and not a principal punishment.
• For utility: the fixed corporal penalties cannot be carried over; the proportioning of proof to penalty, the compensation of the victim, and the victim's structured place in the process can be argued for.

Test yourself

1. How did the classical law limit the fixed hadd penalties? By three devices. An extremely high standard of proof, requiring a confession or a fixed number of adult male witnesses of good character to the act itself. The principle that a hadd punishment is averted by doubt, doubt being construed generously to include a plausible claim of right, an ambiguity in the testimony or a retracted confession. And the availability of tazir, so that conduct which failed the hadd proof was still punished, but discretionarily.

2. What is the aqilah and why is it interesting to a modern lawyer? It is the offender's solidarity group, on which the classical law places liability for diya in cases of unintentional homicide. It is interesting because it spreads the financial burden of an accidental killing across a group rather than leaving it on the individual, which is the function modern systems achieve through liability insurance and through state compensation funds.

3. Compare the victim's position in a homicide under the classical Islamic system and under Indian law. Under the classical system the primary right is the victim's heirs', who may demand retaliation, accept blood money, or forgive, and their choice disposes of the primary penalty. Under Indian law murder is an offence against the state, is not compoundable under section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, and the family's forgiveness does not affect the prosecution; their remedy is compensation ordered under section 395 or paid under the state scheme in section 396.

4. Give one principle from this system that Indian penology could usefully borrow, and one it could not. It could usefully borrow the proportioning of the standard of proof to the severity of the penalty, so that the gravest penalties require the strongest proof; Indian law reflects that only weakly through the confirmation requirement and the special reasons rule for a death sentence. It could not borrow the fixed corporal and capital penalties, which are inconsistent with Article 21 as it is now interpreted.

3. Proportioning proof to penalty

The classical Islamic principle that the gravest penalty requires the strongest proof, and is averted by doubt, is a structural idea Indian law holds only weakly. Indian law does have traces: the confirmation of a death sentence by the High Court under section 407 of the Bharatiya Nagarik Suraksha Sanhita 2023, the requirement of special reasons under section 393(3), the rule that a review in a death case is heard in open court by three judges. But the standard of proof itself does not vary with the sentence.

That is a genuinely open question in modern penology and it is a good closing paragraph.

Two things that cannot survive

1. The graded liability

The Dharmasastra grades punishment by varna. The classical Islamic law of testimony and of diya draws distinctions by status in some accounts. Both are inconsistent with Article 14, equality before the law, and Article 15, which forbids discrimination on the ground of religion, race, caste, sex or place of birth.

This is not merely a historical point. Prison manuals in several Indian States allotted work inside prisons by caste until very recently, and the provisions were struck down. See [Caste in the Prison].

2. The corporal and capital penalties

Mutilation, branding, flogging and stoning cannot be reconciled with Article 21 as it has been interpreted, nor with the international instruments India has accepted. Whipping was abolished as a judicial punishment in India by the Abolition of Whipping Act 1955.

What both systems knew that the modern one forgot

Three observations that make an answer look like the work of somebody who has thought about the material.

Punishment was not primarily imprisonment. Neither classical system used the prison as its main punishment. Both used fine, restitution, admonition, censure, banishment and, at the extreme, corporal penalties. A modern system in which imprisonment is the default and every other measure is an exception is historically unusual, and the argument for alternatives to imprisonment in Module III is in part an argument for returning to a wider range.

The community had a part. Prayaschitta was administered by learned men in the community; the qisas right belonged to the family. The modern process excludes both. Restorative justice, dealt with in [Compensation and the Restorative Approach], is an attempt to bring them back.

Punishment was tied to an account of what a person is for. Both systems justified punishment from a picture of the person's place in a moral order. Modern penology's difficulty in choosing among its theories, described in [Which Theory Indian Law Has Adopted], is in part the difficulty of a system that no longer has such a picture.

A worked answer plan

For a twenty five mark question, the structure that works is this.

1. State the question's two limbs, and say that the second is about utility.
2. The Hindu approach in a paragraph: danda, the king's dharma, matsya nyaya, the four forms, the limits of proportion and deliberation.
3. The Islamic approach in a paragraph: hadd, qisas and tazir, and why proof rather than sentence controlled severity.
4. What is common to both: neither used imprisonment as the principal punishment; both had a route back for the offender; both gave the victim or the community a part; both graded by status.
5. The utility argument, in three positive points: reintegration, compensation, proof proportioned to penalty. Cite section 12 of the Probation of Offenders Act 1958 and sections 395 to 397 of the Bharatiya Nagarik Suraksha Sanhita 2023.
6. The two disqualifications: graded liability against Articles 14 and 15, and corporal penalties against Article 21.
7. A conclusion that takes a position. The reasoning survives; the penalties do not.

What beginners get wrong

They romanticise. An answer that presents either system as gentler than the modern one is inaccurate. Both had corporal and capital penalties.

They condemn without reading. An answer that dismisses both as barbaric misses the restraints each contained and cannot answer the utility limb at all.

They compare the classical systems with each other and forget the present. The comparison MU wants is with the present system.

They cite no modern provision. An answer about utility in the present system that names no provision of the present system is an answer about history.

Quick revision

• Survives: reintegration of the offender, compensation of the victim, and proportioning proof to penalty.
• Indian counterparts: section 12 of the Probation of Offenders Act 1958; sections 395, 396 and 397 of the Bharatiya Nagarik Suraksha Sanhita 2023; section 407 and section 393(3) of that Sanhita.
• Cannot survive: liability graded by status, against Articles 14 and 15; corporal and capital penalties of the classical kind, against Article 21. Whipping abolished as a judicial punishment by the Abolition of Whipping Act 1955.
• Both systems used imprisonment sparingly and used fine, restitution, admonition, censure and banishment instead.
• Both gave the community or the victim a formal part which the modern process removes.
• Close by taking a position: the reasoning survives, the penalties do not.

Test yourself

1. Name three principles from the classical systems that are of present utility, and give an Indian statutory counterpart for each. Reintegration of the offender, whose only Indian counterpart is section 12 of the Probation of Offenders Act 1958, removing the disqualification attaching to a conviction. Compensation of the victim, whose counterparts are sections 395 and 396 of the Bharatiya Nagarik Suraksha Sanhita 2023. And the proportioning of procedural safeguards to the severity of the penalty, of which Indian traces are the confirmation of a death sentence under section 407 and the special reasons requirement in section 393(3).

2. Which two features of the classical systems cannot be carried into the present system, and why? The grading of liability by the status of the offender or the victim, which is inconsistent with Article 14 and Article 15 of the Constitution. And the fixed corporal and capital penalties such as mutilation, flogging and stoning, which are inconsistent with Article 21 as it has been interpreted, and which in the case of whipping were abolished in India by the Abolition of Whipping Act 1955.

3. What is the significance of the fact that neither classical system used imprisonment as its principal punishment? It shows that a system in which imprisonment is the default and everything else an exception is historically unusual rather than natural. It supports the modern argument for alternatives to imprisonment, which is the substance of the probation, plea bargaining and community service material in Module III.

4. Give the standard mistake in answering this question. Describing the two classical systems and stopping, without addressing the utility limb. The description is worth perhaps half the marks, and the argument about what the modern system can and cannot take from them is worth the rest.

3. Proportion

Like cases treated alike, and the sentence graded to the gravity of the offence and the culpability of the offender. Proportion is what makes a sentence intelligible to the offender, to the victim and to the public, and it is what a sentencing policy exists to secure.

4. A wide enough range of sentences

This is the requirement Indian law fails most clearly and most fixably, and it is the strongest single point available in an answer.

If a court's real choice is between a fine and imprisonment, then everything that is too serious for a fine goes to prison. India's list in section 4 of the Bharatiya Nyaya Sanhita 2023 has six items, and it has had six only since 1 July 2024, when community service was added.

The measures an ideal system would have, and India's position on each:

5. An institution that can do what the sentence intends

A court that imprisons in order to reform is making a factual assumption about the prison. If the prison is overcrowded, understaffed, without work and without training, the assumption is false and the sentence cannot achieve what it was passed to achieve.

This is why Module IV is part of a penology paper rather than a separate subject: the sentence and the institution are one question. See [The Challenges Prison Reform Faces].

6. The victim compensated and heard

The state took the wrong from the victim, as [Why the State Alone Punishes] explains, and owes them something in return. An ideal system pays compensation as of course rather than as an afterthought, informs the victim of the progress of the case, and hears them at the sentencing stage.

7. Equality in operation, not only in form

A system in which the poor go to prison for want of bail and for want of the money to pay a fine, while the wealthy do not, is not an equal system however equal its statute book. Two Indian features make this concrete: imprisonment in default of a fine, described in [Fine, and Imprisonment in Default], and the undertrial population, described in [Speedy Trial and the Undertrial].

And the discipline that holds it together: measurement

An ideal system knows its own reconviction rates, its own delays, its own prison population and its own use of each disposal, publishes them, and changes what it does when they are bad. The official Indian source for prison data is the National Crime Records Bureau's Prison Statistics India, and at the date of writing NCRB's own year-wise listing for that publication returns no records for any year, which is itself a fact about the seventh requirement.

A worked example

Design the disposal of a single case against the seven requirements. A twenty year old, first offence, theft of a bicycle worth four thousand rupees, returned to the owner.

Certainty. The offence and its punishment are stated: section 303 of the Bharatiya Nyaya Sanhita 2023.

Reasoned sentence on adequate material. The court hears him on sentence under section 258(2), and, because the court could have dealt with him under the Probation of Offenders Act 1958, section 402 requires special reasons for not doing so, while section 6 of that Act separately forbids imprisoning an offender under twenty one without recording reasons and requires a probation officer's report to be called for.

Proportion. A first offence, small value, property returned.

Range. Here Indian law is at its best. The proviso to section 303(2) requires community service, because the value is under five thousand rupees, it is a first conviction, and the property has been returned.

Institution. He does not go to prison, so the failures of the institution do not bear on him. That is the point of the disposal.

Victim. The property is returned. Compensation under section 395 could be ordered if there were loss beyond the value.

Equality. He is not disadvantaged by poverty at any stage of this disposal, which is exactly what distinguishes it from a fine he might not be able to pay.

That single example shows the whole framework in operation, and the fact that Indian law gets this case right is worth saying, because an answer that is only critical is as unbalanced as one that is only approving.

What beginners get wrong

They equate the ideal system with a reformative one. Reformation is one aim and it does not always work. An ideal system is one that chooses its aim consciously for the case in hand, not one that has settled on a single theory.

They write a wish list. Every item above is tied to a provision or to an identified failure, which is what makes it an answer.

They forget the institution. A sentencing system and a prison system are the same system.

They forget the victim. For most of the twentieth century the victim was invisible in this discussion, and an answer that leaves them out is a twentieth century answer.

Quick revision

• Seven requirements: certainty; a reasoned sentence on adequate material; proportion; a wide enough range of disposals; an institution capable of delivering the sentence's purpose; the victim compensated and heard; and equality in operation.
• Plus the discipline of measurement, published and acted on.
• Indian provisions to cite: Article 20(1); sections 258(2), 393, 393(3), 395, 396 and 402 of the Bharatiya Nagarik Suraksha Sanhita 2023; section 4 of the Bharatiya Nyaya Sanhita 2023; the Probation of Offenders Act 1958, sections 3, 4, 6 and 12.
• The strongest single criticism: the range of disposals is too narrow, so everything too grave for a fine goes to prison.
• Do not answer with adjectives. Every requirement should be attached to a provision or to a failure.

Test yourself

1. List the requirements of an ideal penal system. Certainty in the law; a reasoned sentence chosen on adequate material about the offender as well as the offence; proportion; a range of disposals wide enough that imprisonment is a last resort; institutions capable of achieving what the sentence intends; compensation of and a hearing for the victim; equality in operation as well as in form; and the measurement of results, published and acted on.

2. Why is the range of available disposals the most useful criticism of the Indian system? Because it is the requirement whose failure produces the others. If the real choice is between a fine and imprisonment, everything too serious for a fine goes to prison, which fills the prisons, which makes the institutions incapable of achieving what the sentences intend. India's list of punishments in section 4 of the Bharatiya Nyaya Sanhita 2023 has six items, community service having been added only on 1 July 2024, and there is no suspended sentence, no means-related fine and almost no treatment order.

3. Give one Indian disposal that satisfies most of the requirements, and say why. The proviso to section 303(2) of the Bharatiya Nyaya Sanhita 2023: a first time offender who steals property worth less than five thousand rupees and returns it shall be punished with community service. It is certain, proportionate, avoids imprisonment, does not depend on the offender's means, and returns something to the victim.

4. Why does an ideal penal system need to measure itself? Because every justification of punishment makes a claim about what punishment achieves, and those claims are testable. A system that does not know its own reconviction rates, delays, prison population and use of each disposal cannot tell whether it is achieving anything, and cannot correct itself when it is not.

The Model Prisons and Correctional Services Act 2023, dealt with in [The Model Prisons and Correctional Services Act 2023], is a model circulated to the States and not a central enactment, so the position varies by State.

The victim: reached late and partially

Compensation out of a fine arrived in 1973; a state funded scheme in 2009; the treatment of victims provision in 2013. They are now sections 395, 396 and 397 of the Bharatiya Nagarik Suraksha Sanhita 2023. There is still no general right in the victim to be heard on sentence.

Equality in operation: not met

Three mechanisms convert poverty into custody.

Imprisonment in default of a fine. A fine the offender cannot pay becomes imprisonment the court never decided was appropriate. Section 464 of the Bharatiya Nagarik Suraksha Sanhita 2023, which allows suspension and payment by instalments, is the answer and is very little used.

Bail that depends on sureties. An accused who cannot furnish a surety stays in custody though bail has been granted.

Legal representation. Section 341 of the Bharatiya Nagarik Suraksha Sanhita and Article 39A provide for legal aid, and the quality of what is provided varies.

Measurement: the data are not being published

The official source for prison data is the National Crime Records Bureau's Prison Statistics India. At the date of writing, NCRB's own year-wise listing for that publication returns no records for any year and its English route to the prison statistics page returns an error, so the primary source is not currently downloadable from the Bureau's own site. A penal system that cannot be measured cannot be corrected, and that is a defect in itself.

Where India does well

An answer that is only critical is unbalanced, and there are four things worth saying on the other side.

The rarest of rare doctrine is a serious judicial attempt to structure the gravest sentencing discretion there is, and it is more developed than the equivalent in many retentionist countries.

The prisoners' rights jurisprudence built under Articles 21 and 32 is among the most extensive anywhere, and it was built by the courts on a Victorian statute.

Community service for petty theft, the proviso to section 303(2) of the Bharatiya Nyaya Sanhita 2023, is a well designed disposal: certain, proportionate, and independent of the offender's means.

Section 479 of the Bharatiya Nagarik Suraksha Sanhita 2023 goes further than its predecessor by giving a first time offender release after one third of the maximum sentence, which is a direct legislative attack on the undertrial problem.

A worked example

Two offenders convicted of the same offence on the same day, punishable with up to three years or fine or both.

A, employed, is fined thirty thousand rupees with three months in default. He pays. He goes home.

B, unemployed, is fined thirty thousand rupees with three months in default. He cannot pay. He goes to prison for three months.

The system's own account. Both received the same sentence.

What actually happened. One was fined and one was imprisoned, and the difference was money.

What would fix it. A fine expressed as a proportion of income; community service in default; or the use of section 464 of the Bharatiya Nagarik Suraksha Sanhita 2023 to allow payment by instalments. India has the third and almost never uses it.

That example answers the equality requirement, the range requirement and the measurement requirement at once, and it is the most efficient thing a candidate can put in this answer.

Quick revision

• Certainty: largely met, but very wide maxima and two parallel bodies of law since 1 July 2024.
• Reasoned sentence: machinery present in sections 258(2), 393, 393(3), 402 and 25(1) of the Bharatiya Nagarik Suraksha Sanhita 2023; content absent, because there is no sentencing policy.
• Range: six punishments, no suspended sentence, no means-related fine, no treatment orders, probation under-used.
• Institution: the Prisons Act 1894 does not mention reformation. The Model Prisons and Correctional Services Act 2023 is a model, not a central enactment.
• Victim: sections 395, 396 and 397, reached in 1973, 2009 and 2013.
• Equality: default imprisonment, surety-dependent bail and uneven legal aid convert poverty into custody.
• On the other side: the rarest of rare doctrine, the prisoners' rights jurisprudence, community service for petty theft, and section 479.

Test yourself

1. Which requirement of an ideal penal system does India meet best, and which worst? Best: certainty. Offences and punishments are defined by statute and Article 20(1) forbids retrospective punishment. Worst: the range of disposals, since Indian law offers six punishments, added community service only on 1 July 2024 and confined it to six offences, and has no suspended sentence, no means-related fine and almost no treatment orders.

2. Explain how Indian law converts poverty into custody, and name the provision that could prevent it. A fine the offender cannot pay becomes imprisonment in default under section 8 of the Bharatiya Nyaya Sanhita 2023, so the court's chosen sentence of a fine becomes a sentence of imprisonment it never chose. Section 464 of the Bharatiya Nagarik Suraksha Sanhita 2023 permits the court to suspend the execution of a default sentence and to allow payment by instalments on a bond, and it is very rarely used. Bail dependent on sureties and uneven legal aid have the same effect at earlier stages.

3. Give two things Indian penology does well. The rarest of rare doctrine, which is a serious and developed attempt to structure the gravest sentencing discretion. And the prisoners' rights jurisprudence built under Articles 21 and 32, which brought the Constitution inside a prison governed by an Act of 1894.

4. Why does the absence of published prison data matter to the ideal system argument? Because every justification of punishment makes a testable claim about what punishment achieves. A system that cannot say what its reconviction rate, its prison population, its undertrial proportion or its use of each disposal is cannot know whether its sentences work, and cannot correct itself. At the date of writing the National Crime Records Bureau's own year-wise listing for Prison Statistics India returns no records for any year.

Compensation and restoration shift the focus from the offender to the victim, and ask what would repair the harm rather than what the offender deserves or what would prevent recurrence. See [Compensation and the Restorative Approach].

The three questions, and why they matter

This is the framework that turns a list into an argument, and it is worth reproducing in an answer.

The famous objection to pure utilitarianism falls out of the second row. If punishment is justified purely by consequences, then punishing an innocent person could be justified where doing so would prevent more suffering than it caused. Every utilitarian has to answer that, and the usual answer is that the practice of punishing the innocent could not be kept secret and would in the long run produce worse consequences.

The famous objection to pure retributivism falls out of the first row. If desert is the whole justification, punishment is required even where it does nobody any good, which is difficult to defend when punishment is expensive and its subject is a human being.

The mature position, and the one Indian law reflects, is a mixed theory: the general aim of the institution is forward looking, and retributive desert supplies the limits. Punishment is justified because it reduces crime, but it may be imposed only on the guilty and only to the extent the offence deserves. That is the position developed in [Which Theory Indian Law Has Adopted].

A worked example

An offender is convicted of causing death by a rash and negligent act while driving. What sentence, and why?

Retribution asks what the offence deserves. It looks at the harm, at the degree of negligence, and at the offender's culpability, and fixes a sentence proportionate to those. It does not care whether the sentence will change the offender's driving.

Deterrence asks what sentence, publicly known, would cause others to drive more carefully. It might justify a heavier sentence than desert alone would, because the offence is common and easily prevented.

Prevention asks what would stop this offender doing it again, and would look first at disqualification from driving rather than at imprisonment, because disqualification is precisely targeted.

Reformation asks what would change the offender, and would look at a driver rehabilitation course.

Expiation asks what would let the offender make amends and be restored.

Compensation asks what the victim's family needs, and points to section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 and to the victim compensation scheme in section 396.

Six theories, six different sentences, and a real court has to choose. That is why the theories are not an academic preface to the subject but its whole foundation.

What beginners get wrong

They treat the theories as a historical sequence. They are not. Retribution is not older than deterrence in any useful sense, and the reformative theory did not replace the others. All six are argued for today.

They treat them as mutually exclusive. They are not. A single sentence can serve several, and most sentences do.

They think Indian law has adopted one. It has not, and the courts say so.

They confuse the theory with the punishment. Imprisonment is not the deterrent theory. Imprisonment can serve deterrence, prevention, reformation or retribution depending on why it is imposed and how it is administered.

Quick revision

• A theory of punishment states the end punishment serves, and thereby supplies the standard for judging a particular punishment.
• Two families: backward looking, retribution; forward looking, deterrence, prevention and reformation. Expiation and compensation stand apart.
• Three questions: why punish at all, whom may we punish, and how much.
• The objection to pure utilitarianism is that it could justify punishing the innocent. The objection to pure retributivism is that it requires punishment even where no good comes of it.
• The mature position is a mixed theory: a forward looking general aim with retributive limits.
• The theories are not a historical sequence, they are not mutually exclusive, and a punishment is not the same thing as a theory.

Test yourself

1. What is a theory of punishment, and what does it do? It is a justification: it states the end that punishment is supposed to serve and thereby supplies the standard by which a particular punishment can be judged as appropriate or excessive. Without one, a sentence can be described but not defended.

2. Name the three questions a theory of punishment answers, and show how retributive and utilitarian answers differ. Why punish at all: the retributivist says because the offender deserves it, the utilitarian says because punishing produces less crime than not punishing. Whom may we punish: the retributivist says only the guilty, and only for what they did; the utilitarian says whoever it is useful to punish, unless a further principle forbids it. How much: the retributivist says as much as the offence deserves, the utilitarian says as much as is needed to produce the effect.

3. State the standard objection to each family. To pure utilitarianism, that if the justification is wholly in the consequences it could in principle justify punishing an innocent person where that would prevent more suffering than it caused. To pure retributivism, that if desert is the whole justification then punishment is required even where it does nobody any good, which is hard to defend given its cost in money and in human suffering.

4. Why is a mixed theory the position most modern systems occupy? Because it takes what is defensible from each. The institution of punishment is justified by its forward looking effect in reducing crime, which answers the question why have punishment at all; and retributive desert supplies the limits, so that only the guilty may be punished and only to the extent the offence deserves, which answers the objection that pure consequentialism cannot rule out punishing the innocent or punishing excessively.

The value of the punishment must not be less in any case than what is sufficient to outweigh that of the profit of the offence.

Read those together and the deterrent theory is not a theory of severity at all. Bentham's rule that punishment must not be needless is an argument for the lightest effective sentence, and his rule that it must not be unprofitable is an argument against long imprisonment for offences that do little harm. An answer that presents deterrence as a theory of harshness has misread its founder.

The conditions deterrence needs

Deterrence makes a factual claim, and the claim depends on four conditions being satisfied.

The person must know the penalty. Deterrence through a penalty nobody knows about is impossible.

The person must believe they will be caught. This is the condition that fails most often, and it is why certainty matters more than severity. See [Does Punishment Deter? The Evidence].

The person must be calculating. Offences committed in rage, in intoxication, under compulsion or by a person who does not expect to survive the act are not deterrable by any penalty.

The person must have an alternative. A person who steals because they have no other way to eat is not weighing a cost against a gain in the way the model assumes.

Each failed condition removes a class of offences from the theory's reach, and between them they remove a great many.

What Indian law does with it

The Sanhita's maxima are deterrent in design. Very high maxima for offences the legislature regards as serious, with the actual sentence left to the court.

Mandatory minimum sentences are pure general deterrence. They remove the court's discretion precisely so that the message is certain, and they are the sharpest form of the theory in Indian law.

Enhanced punishment for a repeat offender, section 13 of the Bharatiya Nyaya Sanhita 2023, is special deterrence in statutory form: the ordinary sentence did not deter this person, so the next one is heavier.

The 2013 and 2018 amendments to the law of sexual offences are the clearest recent example of a legislature acting on general deterrence, and they are dealt with in [Deterrence and Heinous Crimes Against Women].

A worked example

A city has a problem with drunken driving. The legislature raises the maximum sentence from two years to five.

What the deterrent theory predicts. Some potential offenders, learning of the change, will decide the risk is not worth it and the offence rate will fall.

What the four conditions ask. Do drivers know the maximum has changed? Do they believe they will be stopped and tested? Are they calculating at the time, given that the offence is by definition committed by an intoxicated person? Do they have an alternative way home?

What Bentham would say. If the same reduction could be achieved by more testing at a lower cost in human suffering, then the increased penalty is needless and therefore unjustified on his own principles.

What actually reduces the offence. The evidence in every jurisdiction points to enforcement, that is to the perceived probability of being stopped, rather than to the size of the penalty.

That example gives a complete answer to a question on the deterrent theory in about a hundred and fifty words, and it demonstrates the criticism without merely asserting it.

The criticisms

It uses the offender as a means. The offender is punished not for what they deserve but in order to influence other people. Kant's objection is that a person must never be treated merely as a means to the welfare of another, and this is the standing philosophical charge against deterrence.

It has no upper limit of its own. If a heavier sentence deters more, the theory alone gives no reason to stop. The limit has to come from somewhere else, which is why every workable system imports retributive proportion as a constraint.

It punishes the detectable rather than the culpable. Where detection is difficult, deterrence requires a heavier penalty to compensate, so the offender who is unlucky enough to be caught bears the weight of everyone who was not.

Its factual claim is weak where it matters most. The evidence is discussed in the next chapter.

Quick revision

• Deterrence justifies punishment by its effect on future conduct through fear.
• General deterrence works on the public by example; special or individual deterrence works on the offender by experience.
• Bentham: all punishment is mischief and is justified only to exclude a greater evil; it must not be groundless, inefficacious, unprofitable or needless; and it must at least outweigh the profit of the offence.
• Bentham's limits make deterrence an argument for the lightest effective sentence, not for severity.
• Four conditions: knowledge of the penalty, belief in detection, a calculating offender, and an available alternative.
• In Indian law: high statutory maxima, mandatory minimums, and section 13 of the Bharatiya Nyaya Sanhita 2023 for repeat offenders.
• Criticisms: uses the offender as a means; has no internal upper limit; punishes the detectable rather than the culpable; and its central factual claim is weakly supported.

Test yourself

1. Distinguish general from special deterrence and say why the distinction matters. General deterrence works on the public at large, who are deterred by the example of the punishment inflicted on the offender. Special or individual deterrence works on the offender, who is deterred by having undergone it. The distinction matters because the two can require different sentences: a sentence heavy enough to make an example may be heavier than this offender needs, and one tailored to this offender may be too light to serve as an example.

2. State Bentham's four cases in which punishment ought not to be inflicted. Where it is groundless, no mischief having been done; where it must be inefficacious, because it cannot act to prevent the mischief; where it is unprofitable, the mischief it produces being greater than the mischief it prevents; and where it is needless, the mischief being preventable at a cheaper rate.

3. Why is it wrong to present the deterrent theory as a theory of severity? Because its own founder's limits point the other way. Bentham held that all punishment is in itself an evil, justified only so far as it excludes a greater evil, and that it must not be needless where the same result could be achieved more cheaply. Deterrence therefore argues for the lightest sentence that will work, and the arguments for severity come from elsewhere.

4. Name the four conditions deterrence requires, and say which fails most often. Knowledge of the penalty; belief that detection is likely; a calculating offender; and an available alternative course of action. The second fails most often: in most jurisdictions the perceived probability of detection is low, which is why the evidence consistently shows that certainty matters more than severity.

Some offences are undeterrable in practice. Offences committed in rage, under intoxication, by persons with serious mental illness, and by those who do not expect to survive the act, are outside the theory's reach whatever the penalty.

Imprisonment may increase reoffending. There is evidence that short sentences of imprisonment for lesser offences are associated with higher reconviction rates than community disposals for comparable offenders. That is the opposite of special deterrence and it is one of the main arguments for probation and for community service.

The methodological difficulty, stated honestly

A candid answer says why the question is hard, and there are four reasons.

The comparison is with a counterfactual. To know whether a penalty deterred, one has to know how many offences would have happened without it, which is unobservable.

Offence rates move for many reasons. Demographics, employment, urbanisation, policing and the willingness of victims to report all move at once, and separating the penalty's contribution from the rest is very difficult.

Reported crime is not crime. A change in policing that raises detection also raises recorded offences, so a successful enforcement policy can look like a rise in crime.

Perception is what matters and it is not measured. Deterrence works through what potential offenders believe about their chances, not through the true probability, and belief is rarely measured at all.

The death penalty, which is where this argument is actually used

MU sets the merits and demerits of the death penalty on four printed papers and the deterrence claim is the first argument on the retentionist side.

Three things can be said with confidence and they should be said in that order.

No study has established that capital punishment deters murder better than long imprisonment does. The comparison is between two severe penalties and the marginal difference, if any, has not been demonstrated.

The reason is structural. Murder is very often committed in circumstances in which no calculation occurs, so the marginal severity of the penalty has nothing to act on.

And the certainty of detection for murder is what varies. Where a murder is very likely to be detected and prosecuted, the deterrent work is already done by that likelihood.

The Law Commission of India considered the deterrence evidence when it recommended abolition except for terror offences, and its treatment is dealt with in [What the Law Commission Has Recommended].

A worked example

Two proposals to reduce theft from railway passengers in Mumbai.

Proposal A. Raise the maximum sentence from three years to seven.

Proposal B. Put more officers on the platforms and on the trains, and provide for immediate charging.

What the evidence predicts. Proposal B works and Proposal A does not, because A raises the magnitude of a penalty that is unlikely to be imposed while B raises the probability that it will be.

What Bentham would add. If B achieves the reduction, then A is needless within the meaning of his rule, and needless punishment is unjustified.

What Beccaria would add. B also improves celerity if the charging is prompt, and promptness is his third condition.

What a court can do. Nothing about either. This is a question for the executive and the legislature, and the fact that the courts cannot reach it is one reason sentencing reform on its own achieves so little.

What beginners get wrong

They say deterrence does not work. It does work; certainty works. What has little effect is severity.

They say the evidence proves the death penalty does not deter. The honest statement is that no study has established that it deters better than long imprisonment, which is a different and defensible claim.

They confuse deterrence with incapacitation. A long sentence prevents offending during the sentence whether or not it deters anybody, and the two effects have to be separated before either can be assessed.

They cite figures they cannot source. An answer that quotes a specific percentage without a source is worse than one that reasons carefully without figures.

Quick revision

• Certainty of detection deters; severity of sentence deters very little; promptness matters.
• Beccaria 1764: the certainty of a moderate punishment makes a stronger impression than the fear of a terrible one joined to the hope of impunity.
• Undeterrable in practice: offences committed in rage, under intoxication, by the seriously mentally ill, and by those who do not expect to be caught.
• Short sentences of imprisonment may increase reoffending compared with community disposals.
• Four methodological difficulties: the counterfactual, confounding causes, reported crime not being crime, and perception rather than reality being what matters.
• On the death penalty: no study has established that it deters murder better than long imprisonment, and the structural reason is that murder is often not the product of calculation.
• Indian legislative practice reaches for severity because it is cheap, and for certainty rarely because it is not.

Test yourself

1. State Beccaria's proposition on certainty and severity. That it is not the intensity of punishment which has the greatest effect on the human mind but its extent, and that the certainty of a punishment, even a moderate one, will always make a stronger impression than the fear of a more terrible penalty joined to the hope of impunity.

2. Why does raising a maximum sentence usually achieve little? Because a potential offender's calculation combines the probability of being caught with the size of the penalty. Where the probability is low, multiplying the penalty changes the expected cost very little. Raising certainty raises the whole expected cost; raising severity multiplies a number that is already close to zero in the offender's estimation.

3. Name three classes of offence that deterrence cannot reach. Offences committed in rage or on sudden provocation; offences committed under intoxication or the influence of drugs; and offences committed by persons with serious mental illness or by those who do not expect to survive the act. In each, no calculation of cost against gain occurs at the time, so the size of the penalty has nothing to act upon.

4. What is the honest statement about the death penalty and deterrence? That no study has established that capital punishment deters murder better than long imprisonment does. That is not the same as saying that it does not deter at all: the claim which has never been made out is the marginal one, that death deters better than the severe alternative with which it must be compared.

Why the theory does not deliver here

Apply the four conditions from [The Deterrent Theory].

Knowledge of the penalty. Satisfied. These amendments were the most widely reported changes to Indian criminal law in a generation.

Belief in detection. Not satisfied, and this is the whole of the answer. Sexual offences are among the most under-reported of all offences. The offender's realistic estimate of being reported, investigated, charged, tried and convicted is low, and raising the penalty does not change it.

A calculating offender. Frequently not satisfied. A large proportion of these offences are committed by persons known to the victim, within a family or a household, in circumstances in which the offender is relying on the relationship rather than calculating a risk.

An available alternative. Not applicable in the ordinary way, but the point that matters is that these are not offences of need, so the model of a calculated cost and gain does not fit them at all.

And there is a specific objection: severity can reduce reporting and reduce convictions

Three consequences of a very heavy penalty, and each has been argued in India.

It reduces reporting where the offender is a family member. A complainant who knows that a report may end in the execution of a relative, and on whom the family will bring pressure, is less likely to report.

It raises the risk to the victim's life. Where the punishment for rape causing death is the same as for rape, the offender who has committed the first has no additional penalty to fear from the second, and has a strong reason to eliminate the only witness. That is the standing objection to providing death for rape simpliciter, and it is why the Sanhita reserves death for rape causing death, for very young victims and for repeat offenders rather than for rape at large.

It reduces conviction rates. Where a mandatory minimum is very high, courts confronted with a case at the margin have been observed to acquit rather than to impose a sentence they regard as disproportionate. A penalty so heavy that it is not applied deters nobody.

What the evidence and the official reviews say

Reported figures for these offences have not fallen since 2013, and the recorded incidence of the most serious of them has risen. Reported crime is not crime, and part of any rise is increased reporting, which is a good thing rather than a bad one. But the deterrent claim was that the offences would fall, and they have not.

The Justice Verma Committee, whose report in January 2013 preceded the 2013 Act, considered the demand for the death penalty for rape and did not recommend it. Its reasoning was that the certainty of punishment rather than its severity is what deters, that the death penalty would be a regressive step, and that the failures were in investigation, in the treatment of complainants and in the trial process rather than in the sentence.

That is the strongest single citation available on this question, because it is an official Indian body considering exactly the proposal that was subsequently enacted and rejecting it for exactly the reason this chapter gives.

What would work instead

An answer that only criticises has not finished. Four measures follow from the analysis.

Raise the certainty of detection and conviction. Investigation capacity, forensic capacity, and time limits on investigation and trial. The Bharatiya Nagarik Suraksha Sanhita 2023 now imposes several such time limits.

Reduce the cost of reporting. Protection of the complainant's identity, support during the trial, and the treatment of victims provision in section 397 of the Bharatiya Nagarik Suraksha Sanhita 2023.

Compensate. Sections 395 and 396, and the fine payable to the victim which sections 65, 66 and 70 of the Sanhita expressly require.

Address the setting. The offences are overwhelmingly committed by persons known to the victim, so measures directed at strangers address a small part of the problem.

A worked example

Two offenders, and the question is what deterrence can be expected of each.

Vikram commits an offence against a woman in a public place, in circumstances where he is very likely to be identified, and he does so in the belief that no complaint will be made. Raising his maximum sentence from ten years to twenty affects him not at all, because he did not expect to be sentenced. What would affect him is the probability of a complaint being recorded, investigated and tried, which is a matter of policing and of the trial, not of the punishment.

Suresh commits an offence within a household, where the victim is dependent on him and the offence is unlikely to be reported for years. The same reasoning applies with more force: the certainty of detection is close to zero, so the severity of the sentence is close to irrelevant to his decision.

Now apply the theory. Deterrence claims that punishment prevents offending by making the cost exceed the gain, and it depends on three things: severity, certainty and celerity. Indian legislative responses to offences against women have raised severity, which is the variable the legislature controls directly. Certainty and celerity depend on reporting, investigation and the speed of trial, which it does not.

The conclusion to write. Increasing severity is a real expression of society's judgment about the gravity of these offences, and on the retributive account that is a sufficient justification. As a deterrent it is the weakest of the three levers, and an answer that says so, and identifies certainty of detection as the strong one, is arguing rather than asserting.

Quick revision

• MU's question is about the relevance of deterrence to this class of offence, not about the theories at large.
• The law: sections 64, 65, 66, 70 and 71 of the Bharatiya Nyaya Sanhita 2023, carrying forward the Criminal Law (Amendment) Acts of 2013 and 2018. Mandatory minimums, life meaning natural life, and death in four provisions.
• The conditions deterrence needs are not satisfied: detection is believed unlikely, the offender is often not calculating, and the offender is usually known to the victim.
• Three specific objections to extreme severity: it reduces reporting within families, it gives the offender a reason to kill the witness, and it can reduce conviction rates.
• The Justice Verma Committee, reporting in January 2013, considered and rejected the death penalty for rape, holding that certainty rather than severity deters.
• What would work: certainty of detection and conviction, reducing the cost of reporting, compensation, and measures directed at the settings in which the offences actually occur.

Test yourself

1. Set out the punishments the Bharatiya Nyaya Sanhita 2023 provides for the gravest sexual offences. Section 64, rape: rigorous imprisonment not less than ten years extending to imprisonment for life, and fine. Section 65(1), a victim under sixteen: not less than twenty years extending to imprisonment for the remainder of natural life. Section 65(2), a victim under twelve: the same, or death. Section 66, rape causing death or a persistent vegetative state: not less than twenty years extending to natural life imprisonment, or death. Section 70(1), gang rape: not less than twenty years extending to natural life imprisonment, with a fine payable to the victim. Section 70(2), gang rape of a victim under eighteen: natural life imprisonment and fine, or death. Section 71, a repeat offender: natural life imprisonment, or death.

2. Why does the deterrent theory not deliver in this class of case? Because the conditions it requires are absent. The offender's belief in the probability of detection is low, since these offences are heavily under-reported; a large proportion are committed by persons known to the victim, within relationships where the offender relies on the relationship rather than calculating a risk; and the offences are not the product of the cost and gain reasoning the model assumes.

3. Give the argument that a death penalty for rape may endanger the victim. If rape and rape causing death attract the same maximum penalty, an offender who has committed the first faces no additional penalty for the second and has a strong incentive to eliminate the only witness. That is why the Sanhita provides death for rape causing death, for the youngest victims and for repeat offenders rather than for rape at large.

4. What did the Justice Verma Committee recommend on this question, and why? Reporting in January 2013, it declined to recommend the death penalty for rape. It reasoned that certainty rather than severity of punishment is what deters, that introducing the death penalty would be a regressive step, and that the failures lay in investigation, in the treatment of complainants and in the trial process rather than in the sentence.

The best short formulation is that retribution is the claim that the offender deserves a proportionate penalty, and desert is a judgment about the act, not a feeling about the offender.

Lex talionis and its difficulty

The oldest form of retribution is the talion, an eye for an eye, and its virtue is that it supplies an exact measure. Its difficulty is that it is unworkable for most offences.

What is the equivalent punishment for forgery, for perjury, for driving without insurance, for insider trading? The talion has nothing to say about any of them, and taking an eye for an eye requires the state to do the very thing it forbids.

Modern retributivism therefore keeps the proportion and drops the equivalence. Offences are ranked by seriousness, punishments are ranked by severity, and the two scales are matched. That is the just deserts theory in [Retribution and Just Deserts].

Where retribution appears in Indian law

Retribution is rarely named in Indian judgments, and its influence is everywhere in the structure.

Proportionality of sentence to offence. The Sanhita grades punishments by the gravity of the offence, and appellate courts interfere with sentences that are disproportionate.

Only the guilty. The whole apparatus of proof, the presumption of innocence, and Article 20 of the Constitution.

Section 9 of the Bharatiya Nyaya Sanhita 2023. One punishment for an offence made up of parts, and no more than could be awarded for any one of two overlapping definitions. Those are desert limits, not deterrence limits: a deterrent theory would have no reason to cap the total.

The requirement of special reasons for a death sentence, section 393(3) of the Bharatiya Nagarik Suraksha Sanhita 2023, and the rarest of rare doctrine built on it, are attempts to confine the gravest penalty to the cases that deserve it.

The gravity of the offence in section 25(1) of the Bharatiya Nagarik Suraksha Sanhita 2023, which now requires the court to consider gravity in deciding whether sentences run concurrently or consecutively.

A worked example

An offender who has stolen twenty thousand rupees is before a court. The prosecution says that theft from ATMs has become common in the district and that an exemplary sentence would help.

The deterrent answer. A heavy sentence, because the offence is common and the message is needed.

The retributive answer. A sentence proportionate to this theft. That other people are stealing is a fact about them and not about this offender's desert, and to add to his sentence because of what others are doing is to use him as a means.

Where they meet. Both theories permit a sentence within the range the offence deserves, and deterrence may properly influence the choice within that range. What retribution forbids is exceeding it.

That is the mixed theory in miniature, and it is how most sentencing systems actually work.

The criticisms

It cannot say how much. Proportion requires a scale, and the theory does not supply one. Why fourteen years for this and seven for that? Retribution says the graver offence deserves more without saying how much more.

It justifies suffering for no gain. Kant's dissolving society is the reductio. A punishment that helps nobody, deters nobody and reforms nobody is still required, and that is expensive in money and in human terms.

It is criticised as institutionalised vengeance. The reply is the table above, and it is a good reply, but the resemblance is close enough that the objection is always made.

It ignores the offender's circumstances. Two offenders who did the same thing deserve the same, on a strict view, however differently placed they were. Every mitigating circumstance is a departure from pure desert, and modern retributivists deal with this by locating circumstances inside culpability rather than outside desert.

Quick revision

• Retribution justifies punishment by the offence alone. Backward looking, and complete without reference to consequences.
• Kant: punishment must never be inflicted merely as a means to another good; the last murderer must be executed before a dissolving society disperses.
• Hegel: punishment is the right of the criminal, because it treats them as a rational agent who willed a universal principle.
• Not revenge: it is inflicted by the state, only on the guilty, in proportion, without requiring emotion, under rules fixed in advance, and it ends the matter.
• Lex talionis supplies an exact measure and is unworkable for most offences, so modern retributivism keeps proportion and drops equivalence.
• In Indian law it appears as proportionality, as the requirement of guilt, in section 9 of the Bharatiya Nyaya Sanhita 2023, in the special reasons rule and in the gravity requirement in section 25(1) of the Bharatiya Nagarik Suraksha Sanhita 2023.
• Criticisms: no scale, suffering for no gain, resemblance to vengeance, and difficulty accommodating the offender's circumstances.

Test yourself

1. State Kant's version of the retributive theory and the illustration he uses. That judicial punishment can never be administered merely as a means for promoting another good, either for the criminal or for civil society, but must be imposed only because the individual has committed a crime, since a human being may never be treated merely as a means to the purposes of another. His illustration is that if a civil society were to dissolve itself by common agreement, the last murderer in prison ought first to be executed, so that everyone may realise the desert of his deeds, although no consequence whatever can follow from that execution.

2. Distinguish retribution from revenge on four grounds. Retribution is inflicted by the state through a competent authority after proof of guilt, only on the offender, in a measure proportionate to the offence and fixed by rules laid down in advance, and it ends the matter. Revenge is inflicted by the injured party, on whoever they believe responsible, in whatever measure their feeling demands, under no rules, and it provokes counter-vengeance.

3. Why did modern retributivism abandon lex talionis? Because equivalence is unworkable. There is no equivalent penalty for forgery, perjury or insider trading, and inflicting on the offender exactly what they inflicted requires the state to do what it forbids. Modern retributivism keeps the idea of proportion, ranking offences by seriousness and punishments by severity and matching the scales, and drops the idea of exact equivalence.

4. What is the role of retribution in a modern sentencing system? It is chiefly a limiting principle rather than a driving purpose. The forward looking theories explain why the institution of punishment exists; retribution explains why only the guilty may be punished and why no offender may be punished more than the offence deserves, however much a heavier sentence might deter.

Culpability. The offender's blameworthiness: intention, knowledge, recklessness, negligence, motive, and the degree of participation.

Both are needed. Harm alone would punish an unlucky accident like an intended killing; culpability alone would punish an attempt like a completed offence. Every mature sentencing system grades on both.

What just deserts excludes

This is where the theory bites and it is what makes it a real constraint rather than a description.

Previous convictions. On a strict desert view a previous conviction says nothing about the seriousness of the present offence, so it should not increase the sentence. Modern desert theorists usually allow a modest discount for a first offender rather than a premium for a recidivist. Indian law goes the other way: section 13 of the Bharatiya Nyaya Sanhita 2023 raises the ceiling for a repeat property or coinage offender, and section 71 does so far more severely in sexual offences.

Dangerousness. A sentence longer than the offence deserves, imposed because the offender may offend again, is preventive detention wearing a sentence's clothes. Desert forbids it.

Exemplary sentences. A sentence raised above what the offence deserves because the offence is prevalent uses the offender as a means, which is the objection in [The Retributive Theory].

The offender's prospects of reform. A sentence shortened because the offender seems reformable, or lengthened because they do not, departs from desert. It is what the indeterminate sentence did and it is what the theory was a reaction against.

Indian law measured against it

Where India complies. Determinate sentences are the norm. Proportionality is stated as a principle by the courts and applied on appeal. Harm and culpability both grade the Sanhita's offences.

Where India does not. There is no ranking of offences by seriousness beyond the maxima the statute happens to fix, so ordinal proportionality is unpoliced except where an appellate court intervenes. There is no sentencing council or guideline machinery. And repeat offending raises the ceiling in ways strict desert would not allow.

The one place India comes close. The rarest of rare doctrine is an attempt at cardinal proportionality for the top of the scale: it says what the gravest penalty is reserved for. It is significant that the only structured Indian sentencing doctrine concerns the one sentence that cannot be corrected.

A worked example

Rank three offences and see what the theory requires.

Ordinal proportionality requires B to be punished more heavily than A. It does not by itself tell us where C sits, because C's harm is the greatest and C's culpability the least, and the theory has to weigh them.

Cardinal proportionality asks what the actual figures should be, and that is a question the theory cannot answer from within: it needs a decision about the level of the whole scale.

What Indian law does. A is dealt with by the proviso to section 303(2) of the Bharatiya Nyaya Sanhita 2023, community service. B and C are left to the court's discretion within wide maxima, with no ranking to guide it.

What beginners get wrong

They treat just deserts as a synonym for harsh sentencing. It is not. It is a theory of proportion, and it is as much an argument against excessive sentences as for adequate ones.

They forget culpability. Desert is not measured by harm alone.

They confuse the two proportionalities. A complaint that sentences are too low is cardinal; a complaint that one offence is punished more heavily than a graver one is ordinal.

They assume it is what Indian law applies. Indian law states proportionality as a principle and has almost no machinery for delivering it.

Quick revision

• Just deserts: severity proportionate to seriousness; seriousness is harm plus culpability.
• Ordinal proportionality: the ranking of offences must match the ranking of penalties. Cardinal proportionality: the absolute level of the scale, fixed by anchoring its ends.
• It arose in the 1970s against the indeterminate sentence, on three grounds: rehabilitation did not work, indeterminacy was oppressive, and it produced unequal sentences for the same act.
• It excludes previous convictions as a ground for enhancement, dangerousness, exemplary sentences and the offender's prospects of reform.
• Indian law departs from it on repeat offending, section 13 and section 71 of the Bharatiya Nyaya Sanhita 2023, and has no machinery for ordinal proportionality.
• The rarest of rare doctrine is India's nearest approach to cardinal proportionality, and it applies only to the death penalty.

Test yourself

1. Distinguish ordinal from cardinal proportionality. Ordinal proportionality governs the relations between sentences: a graver offence must attract a graver penalty, so that the ranking of offences matches the ranking of punishments. Cardinal proportionality governs the absolute level of the scale, since a consistently ranked scale could run from a day to a week or from a year to death, and it is fixed by anchoring the penalties at the ends of the scale.

2. What are the two components of seriousness, and why are both needed? Harm, that is the injury done or risked; and culpability, that is the offender's blameworthiness in terms of intention, knowledge, recklessness, negligence, motive and degree of participation. Both are needed because harm alone would punish an unlucky accident as heavily as an intended killing, and culpability alone would punish an attempt as heavily as a completed offence.

3. Why did just deserts emerge in the 1970s? As a reaction against the indeterminate sentence produced by the rehabilitative ideal. Evaluations were read as showing that rehabilitation programmes achieved little; indeterminate sentences gave the offender no way of knowing when they would be released and gave unreviewed power to administrators; and treating two offenders who had done the same thing differently because they were judged differently curable was seen as unjust.

4. Name two features of Indian law that a strict desert theorist would object to. Section 13 of the Bharatiya Nyaya Sanhita 2023, which raises the sentencing ceiling for a repeat offender in coinage and property offences, and section 71, which does so far more severely for repeat sexual offences. On a strict desert view a previous conviction says nothing about the seriousness of the present offence, and desert theorists generally allow a discount for a first offender rather than a premium for a recidivist.

Selective incapacitation, and why it is dangerous

The modern development of the theory is the proposal to identify the small group of offenders responsible for a large share of offences and to incapacitate them for long periods, while dealing leniently with the rest. It is efficient in principle and it has three defects that an answer should name.

Prediction is unreliable. Predicting who will offend again produces a high rate of false positives, so many people are detained for offences they would never have committed.

It punishes for the future. A sentence longer than the offence deserves, imposed because of what the offender might do, is preventive detention imposed by a criminal court. Desert forbids it, as [Retribution and Just Deserts] explains.

It entrenches disadvantage. The factors that predict reoffending, unemployment, poor housing, disrupted schooling, are markers of disadvantage, so an efficient predictive system incapacitates the poor.

Where prevention appears in Indian law

Preventive detention is not punishment, as [Punishment: the Concept and the Definition] explains, because there is no offence and no conviction. It is included here because it is the pure form of the preventive idea, and because its existence shows what happens when prevention is separated from desert altogether.

A worked example

A man with six previous convictions for burglary is convicted of a seventh. The offence itself is unremarkable.

The retributive answer. A sentence proportionate to this burglary. The previous convictions may show a lack of the mitigation a first offender would have, but they do not make this burglary graver.

The preventive answer. A long sentence, because this offender will burgle again the moment he is at liberty, and every year of custody is a year of burglaries prevented.

What Indian law does. Section 13 of the Bharatiya Nyaya Sanhita 2023 raises the ceiling to imprisonment for life or ten years, because burglary is an offence under Chapter XVII. Section 394 of the Bharatiya Nagarik Suraksha Sanhita 2023 allows his address to be notified for five years after release. The State habitual offender legislation may allow further measures.

What the criticism is. The extra years are imposed for offences he has not committed, on a prediction that may be wrong, and every year of it costs the state money and costs him his life.

What might work better. The measures that address why he burgles: employment, housing and, where relevant, treatment for addiction. That is the reformative answer, and the honest position is that prevention buys certain but temporary safety while reformation offers uncertain but lasting safety.

Ending an answer on that sentence is a good way to finish, because it states the trade-off rather than choosing a side.

The criticisms

It is only temporary, except for death. A prisoner is released, and if nothing has changed the offending resumes. Prevention buys time and does not use it.

It is expensive. Incapacitation by imprisonment is the most expensive disposal there is, and the cost rises with the length.

It punishes for what has not happened. Any sentence longer than desert allows is punishment for a predicted future.

Prison may make it worse. If imprisonment increases the probability of reoffending after release, then incapacitation during the sentence is bought at the price of more offending afterwards. That is the strongest empirical objection and it is dealt with in [Does Punishment Deter? The Evidence].

Quick revision

• Prevention or incapacitation justifies punishment by disabling the offender rather than by influencing their choice.
• Its strength is certainty: it does not depend on the offender's calculation or on their willingness to change.
• Forms: death, imprisonment, forfeiture, disqualification, surveillance and, outside punishment altogether, preventive detention.
• Disqualification is the most precisely targeted preventive measure and Indian general criminal law does not list it among its punishments.
• Selective incapacitation is efficient in principle and defective in three ways: unreliable prediction, punishment for the future, and the entrenchment of disadvantage.
• Indian provisions: sections 13 and 71 of the Bharatiya Nyaya Sanhita 2023; section 394 of the Bharatiya Nagarik Suraksha Sanhita 2023; the Criminal Procedure (Identification) Act 2022; and the State habitual offender laws.
• Criticisms: temporary, expensive, punishes for what has not happened, and may increase offending after release.

Test yourself

1. What distinguishes the preventive theory from the deterrent theory? Both look forward, but deterrence works through the offender's choice, by making the offence appear too costly, while prevention works by removing the offender's capacity to offend at all. Deterrence therefore fails wherever the offender does not calculate; prevention does not depend on the offender's state of mind and its effect during the sentence is certain.

2. Name four preventive measures other than imprisonment, with Indian authority where there is any. Death, which incapacitates permanently. Forfeiture of property, section 4(d) of the Bharatiya Nyaya Sanhita 2023 and sections 154 and 155. Notification of the address of a previously convicted offender, section 394 of the Bharatiya Nagarik Suraksha Sanhita 2023. And the taking and retention of measurements of convicts under the Criminal Procedure (Identification) Act 2022. Disqualification is the most precisely targeted of all and is not among the punishments Indian general criminal law lists.

3. State the three objections to selective incapacitation. Prediction of future offending is unreliable and produces many false positives, so people are detained for offences they would never have committed. A sentence longer than the offence deserves, imposed because of predicted future conduct, is preventive detention imposed by a criminal court and is forbidden by desert. And the factors that predict reoffending are markers of social disadvantage, so an efficient predictive system incapacitates the poor.

4. Why is incapacitation the retentionist's strongest argument on the death penalty, and what is the answer to it? Because it does not depend on the contested empirical claim that death deters better than long imprisonment; an executed offender certainly does not offend again. The answer is that a sentence of imprisonment for the whole of the remainder of the offender's natural life incapacitates as completely for practical purposes, so the marginal preventive gain from execution is very small, which is why the availability of a fixed term or whole life sentence matters so much to the debate.

Why it matters here. It is the leading Indian statement of the reformative theory, it is the origin of the complaint that the Indian range of punishments is too narrow, and it shows the theory being applied without producing a soft result: the Court refused probation and it reduced but did not remove the imprisonment.

The theory applied where it does not produce leniency

T. K. Gopal alias Gopi v. State of Karnataka, (2000) 6 SCC 168, decided 5 May 2000, is the second case to cite and it is the more useful of the two.

Facts. The appellant, a mistry working in a village in Tumkur district, was convicted of the rape of an infant of about one and a half years and sentenced to ten years' rigorous imprisonment and a fine. He appealed from jail. The Supreme Court issued notice to him to show cause why the sentence should not be enhanced to imprisonment for life, having regard to the age of the victim.

Held. The Court discussed the theories of punishment at length and affirmed that reformation is an object of the criminal law and that a convict retains their human dignity, while declining to treat reformative considerations as displacing the gravity of the offence in a case of that kind.

Why it matters here. It stops the reformative theory being a slogan. A theory that always produces the lighter sentence is not a theory of punishment at all, and the value of Gopal is that the Court applied the theory and still did not reduce the sentence.

The theory in a third form: composition and reparation

Narotam Singh v. State of Punjab, (1979) 4 SCC 505, decided 11 January 1978, shows the reformative approach producing a disposal rather than a lighter prison term.

Facts. The appellant was convicted of bigamy after his marriage broke down over a dowry dispute and he formed a second union. He was sentenced to two years' rigorous imprisonment and a fine, and the High Court dismissed his appeal summarily. He was a businessman on whose business both women and the family depended.

Held. The conviction was upheld, but the Court permitted the offence to be compounded on a settlement under which he paid forty thousand rupees to the complainant and five thousand as costs, and she consented to divorce. Imprisonment would not restore harmony between the parties, the complainant derived poor comfort from a severe sentence if she was left without means, and compensation for the breaking up of the matrimonial home would instil a correctional responsibility in the man while acquittal on composition would save the business and avert a hurtful jail term. Krishna Iyer J opened the judgment with the observation that the law of crimes perverts itself into the crime of law if narrow legalism overwhelms social justice.

Why it matters here. It is the clearest illustration of a court choosing a compensatory and restorative disposal over imprisonment, and it links the reformative theory to the compensation material in [Compensation and the Restorative Approach].

Where the theory appears in the statute book

The Probation of Offenders Act 1958 is the reformative theory in statutory form. Section 3, release after admonition. Section 4, release on a bond of good conduct with supervision. Section 6, the bar on imprisoning an offender under twenty one without recording reasons and without calling for a report. Section 12, the removal of the disqualification attaching to the conviction.

Section 401 of the Bharatiya Nagarik Suraksha Sanhita 2023, the parallel power, and section 402, which requires special reasons wherever the court could have dealt with the accused under section 401 or under the Probation of Offenders Act 1958, or a youthful offender under the Juvenile Justice Act 2015, and has not done so.

The Juvenile Justice (Care and Protection of Children) Act 2015, whose whole Chapter VII is rehabilitation and social reintegration, and whose section 21 forbids a sentence of death or of life imprisonment without the possibility of release on a child.

Community service, section 4(f) of the Bharatiya Nyaya Sanhita 2023.

And almost nothing in the Prisons Act 1894. The word reformation does not appear in it, which is the fundamental problem of Indian penology: the sentencing law has been reformative in aspiration since 1958 and the prison law has been custodial in design since 1894.

The criticisms

The evidence is disputed. The evaluations of the 1970s were widely read as showing that rehabilitation programmes achieved little, which is what produced the just deserts reaction.

It cannot fix a sentence. If the sentence lasts until the offender is reformed, it is indeterminate, and an indeterminate sentence is oppressive and unequal. If it is determinate, then something other than reformation has fixed its length.

It treats the offender as a patient. Hegel's objection, in [The Retributive Theory], is that treating a person as a subject to be cured rather than as an agent who chose fails to treat them as a person at all.

It can justify more intervention than desert allows. A treatment programme that requires three years when the offence deserves six months is a heavier punishment justified by the offender's supposed need.

And in India it is undeliverable. A court that imprisons in order to reform is making an assumption about a prison that is overcrowded, understaffed and often without work or training. That is [The Challenges Prison Reform Faces].

A worked example

Rohit, aged nineteen, with no previous conviction, is convicted of an offence punishable with three years. He has a job and lives with his parents. Ask what each theory would do with him, and see what the reformative answer adds.

Retribution asks what he deserves for what he did, and answers with a proportionate sentence, whatever effect it has.

Deterrence asks what will discourage him and others, and answers with a sentence severe enough to be noticed.

Incapacitation asks how to stop him offending during the sentence, and answers with custody.

Reformation asks a different question: what would make him less likely to offend afterwards. On these facts the answer is that a short sentence would cost him his employment, expose him to a criminal population, and return him unsupervised and unemployable.

What the law then does. Section 6 of the Probation of Offenders Act 1958 forbids the court to imprison an offender under twenty one unless satisfied it would not be desirable to deal with him under section 3 or 4, requires reasons to be recorded, and requires a probation officer's report to be called for. If released under section 4, he may be placed under supervision for not less than a year, the officer must under section 14(b) endeavour to find him suitable employment, and section 12 removes the disqualification attaching to his conviction.

And the point of the example. Every step there is directed at what Rohit will be in three years, not at what he did last year. That is the reformative theory in operation, and it is why it produces different institutions and not merely a different tone.

Quick revision

• The reformative theory justifies punishment by the reclamation of the offender, and it is the only theory that treats release as part of the problem.
• Cite Mohammad Giasuddin, (1977) 3 SCC 287: punishment as a process of re-shaping, a therapeutic rather than a terror outlook, criminality as a curable deviance, and the range of Indian punishments as too narrow.
• Cite T. K. Gopal, (2000) 6 SCC 168, where the theory was applied and did not produce leniency.
• Cite Narotam Singh, (1979) 4 SCC 505, where it produced compensation and composition instead of imprisonment.
• Statutory expressions: the Probation of Offenders Act 1958 sections 3, 4, 6 and 12; sections 401 and 402 of the Bharatiya Nagarik Suraksha Sanhita 2023; Chapter VII and section 21 of the Juvenile Justice Act 2015; community service under section 4(f) of the Bharatiya Nyaya Sanhita 2023.
• The Prisons Act 1894 does not mention reformation.
• Criticisms: disputed evidence, inability to fix a sentence, treating the offender as a patient, justifying more intervention than desert allows, and being undeliverable in Indian prison conditions.

Test yourself

1. State the reformative theory and the leading Indian authority for it. That the object of punishment is the reclamation of the offender, who is treated as a person capable of correction, so that the sentence is chosen for its effect on them. The leading Indian authority is Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, in which the Court held that punishment should be a process of re-shaping a person who has deteriorated into criminality, that a therapeutic rather than a terror outlook should prevail, and that the community has a primary stake in the rehabilitation of the offender as a means of social defence.

2. Why is T. K. Gopal the more useful case of the two? Because the Court applied the reformative theory in a case where it did not produce a lighter sentence. The appellant had been convicted of the rape of an infant and the Court had issued notice to enhance his sentence. A theory that always produces leniency is not a theory of punishment, and Gopal shows the theory operating as a consideration rather than as a conclusion.

3. Give four statutory expressions of the reformative theory in Indian law. Sections 3, 4, 6 and 12 of the Probation of Offenders Act 1958; sections 401 and 402 of the Bharatiya Nagarik Suraksha Sanhita 2023; Chapter VII and section 21 of the Juvenile Justice (Care and Protection of Children) Act 2015; and community service under section 4(f) of the Bharatiya Nyaya Sanhita 2023.

4. What is the fundamental Indian problem with the reformative theory? That the sentencing law has been reformative in aspiration since the Probation of Offenders Act 1958, while the prison law is the Prisons Act 1894, which does not mention reformation and is designed for custody, discipline and health. A court that imprisons in order to reform makes an assumption about the institution which the institution is not equipped to satisfy.

The link is this. A theory that says the offender is to be reformed makes a claim about the institution in which the sentence is served: if the prison is degrading, no reformation happens there. So the reformative theory and the prisoners' rights jurisprudence are the same argument applied at two stages, and a candidate who says so is doing something a list of cases cannot do.

The death penalty line

The reformative theory enters the gravest sentencing decision as a mitigating circumstance, and it is the one that has done the most work.

Bachan Singh's mitigating list. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, set out the mitigating circumstances urged before the Constitution Bench and said that they are undoubtedly relevant and must be given great weight. Two of the seven are reformative:

The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.

Read the last sentence again. The burden is on the State. The prosecution must prove by evidence that the offender cannot be reformed, and it is not for the offender to prove that they can. That single sentence is the reformative theory's strongest foothold in Indian law and it is very often omitted from answers.

The case is worked in full in [Bachan Singh and the Rarest of Rare].

And the practical failure of it. The trouble is that the burden was almost never discharged because it was almost never addressed: trial courts did not collect the material on which reformability could be assessed. That is the problem Manoj v. State of Madhya Pradesh set out to fix, and it is worked in [Manoj and the Mitigation Framework].

What the theory has actually achieved in India

An honest answer distinguishes the doctrine from its delivery.

Achieved. The proposition that the offender's circumstances matter at the sentencing stage is now beyond argument, and it is embodied in the statute: section 258(2) of the Bharatiya Nagarik Suraksha Sanhita 2023 requires the accused to be heard on sentence, section 402 requires special reasons wherever the court could have dealt with the accused under section 401 or under the Probation of Offenders Act 1958 and did not, and section 393 requires reasons for the sentence.

Achieved. The burden on the State to prove unreformability in a capital case, and the framework of material that must be collected before a death sentence may be considered.

Achieved. A body of prisoners' rights law resting on the premise that a prisoner remains a person.

Not achieved. A prison system capable of reforming anybody. The Prisons Act 1894 does not mention reformation, and [The Challenges Prison Reform Faces] sets out why the institution cannot deliver what the sentencing doctrine assumes.

Not achieved. A wide enough range of disposals. Giasuddin complained about this in 1977 and the list of punishments grew by one item in 2024.

A worked example

A twenty three year old with no previous conviction is convicted of culpable homicide not amounting to murder in a fight. He has completed a diploma in prison while an undertrial and has an offer of employment.

What the reformative line requires the court to do. Hear him on sentence under section 258(2). Consider the material about him and not only about the offence, following Giasuddin. Consider whether a shorter sentence, or probation where available, would achieve more than a long one.

What the same line requires in a capital case. If this were murder and the death sentence were in issue, Bachan Singh would put the burden on the State to prove by evidence that he cannot be reformed, and the material he has produced, the diploma and the employment offer, is exactly the evidence that discharges the mitigating circumstance in his favour.

What the prison will actually do. Depends on the State and on the institution. That gap between doctrine and delivery is the honest conclusion.

Quick revision

• Sentencing line: Mohammad Giasuddin, (1977) 3 SCC 287; Narotam Singh, (1979) 4 SCC 505; T. K. Gopal, (2000) 6 SCC 168.
• Prisoners' rights line: Sunil Batra, (1978) 4 SCC 494, and Sunil Batra, (1980) 3 SCC 488. The reformative theory and prisoners' rights are the same argument at two stages.
• Death penalty line: Bachan Singh, (1980) 2 SCC 684, which makes the probability of reformation a mitigating circumstance and puts the burden on the State to prove by evidence that the offender does not satisfy it.
• Statutory embodiment: sections 258(2), 393 and 402 of the Bharatiya Nagarik Suraksha Sanhita 2023; the Probation of Offenders Act 1958.
• Not achieved: a prison system capable of delivering reformation, and a range of disposals wide enough to make the theory operable.

Test yourself

1. Which mitigating circumstances in Bachan Singh express the reformative theory, and what is remarkable about them? The probability that the accused would not commit criminal acts of violence constituting a continuing threat to society, and the probability that the accused can be reformed and rehabilitated. What is remarkable is the sentence that follows them: the State shall by evidence prove that the accused does not satisfy those conditions. The burden of showing that an offender is beyond reformation is on the prosecution.

2. How are the reformative theory and the prisoners' rights jurisprudence connected? They are the same argument applied at two stages. A sentence imposed in order to reform assumes an institution capable of reforming, so a prison that is degrading defeats the sentencing purpose. The decisions that brought the Constitution inside the prison rest on the same premise as the sentencing decisions, that the offender remains a person.

3. Name the three sentencing decisions that state the reformative theory in India and say what each adds. Mohammad Giasuddin, (1977) 3 SCC 287, states the theory and complains that the range of Indian punishments is too narrow. Narotam Singh, (1979) 4 SCC 505, applies it to produce a compensatory disposal instead of imprisonment. T. K. Gopal, (2000) 6 SCC 168, applies it in a case where it did not produce leniency, which stops it being a slogan.

4. Distinguish what the theory has achieved in India from what it has not. It has achieved the acceptance that the offender's circumstances matter at sentencing, embodied in sections 258(2), 393 and 402 of the Bharatiya Nagarik Suraksha Sanhita 2023 and in the Probation of Offenders Act 1958; the burden on the State to prove unreformability in a capital case; and a body of prisoners' rights law. It has not achieved a prison system capable of reforming anybody, since the Prisons Act 1894 does not mention reformation, nor a range of disposals wide enough to make the theory operable, a complaint made in 1977 and answered by one addition in 2024.

The idea of a sentence served. A convict who has completed a sentence has "paid", and the law does not permit them to be punished again for the same offence: Article 20(2) and section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023.

Section 12 of the Probation of Offenders Act 1958, which removes the disqualification attaching to a conviction where the offender has been dealt with under sections 3 or 4. That is the nearest thing in Indian law to an institutional discharge of guilt, and it is the provision to cite in any expiation answer.

Remission for good conduct. The remission system rewards the prisoner who behaves, which assumes that conduct during the sentence bears on what the sentence should be, and that is expiatory reasoning.

Composition of offences, section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, where the victim's acceptance of a settlement ends the matter.

Apology and remorse as mitigating circumstances. Bachan Singh records that some earlier decisions had held post-murder remorse and penitence irrelevant to sentence, and that those decisions could no longer be held good law in view of the current penological trends and the sentencing policy in the Code. So the Constitution Bench brought remorse back in as a relevant circumstance, which is an expiatory idea entering by the door of mitigation.

The criticisms, which are the answer to the utility question

There are four and they should be stated in this order.

Its mechanism does not exist. Suffering does not wipe out anything. It is a metaphor drawn from religion and from accounting, and neither transfers. The Pennsylvania penitentiaries were the experiment and they did not produce penitence.

Penance is not punishment. As [The Five Marks of a Punishment] shows, punishment must be intentionally administered by human beings other than the offender. Self-imposed atonement is not punishment at all, and the moment expiation is imposed by the state it becomes ordinary punishment with a religious explanation attached.

It gives no measure. How much suffering discharges how much guilt? The theory has no answer, and the tariffs of the classical texts are conventions rather than calculations.

It protects nobody. An offender who has expiated and is restored may offend again, and the theory has nothing to say about that.

And what survives, which is the other half of the answer

This is where a good answer separates itself, because the criticisms are easy and the residue is not.

The claim to restoration is the theory's real contribution, and modern penology has nothing to put in its place. Indian criminal law records a conviction permanently, discloses it, and disqualifies on it. A person who has served a sentence for a theft at twenty carries it at fifty. Every theory except expiation is indifferent to that, because deterrence, prevention, retribution and reformation are all complete when the sentence ends.

So the utility of the expiation theory is negative and diagnostic. Its mechanism is superstition; its demand is right. A penal system that punishes and then never lets the offender back has not finished the job it began, and expiation is the only theory that says so.

That is the conclusion to write.

A worked example

A man served two years for theft twenty years ago and has not offended since. He applies for a licence that requires good character and it is refused because of the conviction.

Retribution says he was punished proportionately and has nothing further coming to him, and it says nothing about the licence.

Deterrence would say that a permanent consequence adds to the penalty and so adds to the deterrent, which is an argument for the refusal.

Prevention would ask whether he is likely to offend in the licensed occupation, which on these facts he is not.

Reformation would say he appears reformed, and that the refusal impedes the employment that sustains reform.

Expiation says he has paid, and that the debt cannot be collected twice. It is the only theory that gives a direct answer to the question he is actually asking.

What Indian law says. Nothing, unless he was released under section 3 or section 4 of the Probation of Offenders Act 1958, in which case section 12 removes the disqualification. He was sentenced, so it does not apply to him.

That example is the whole utility argument in one page and it is the most useful thing a candidate can put in this answer.

Quick revision

• Expiation, atonement or penance: punishment annuls guilt, and the offender who has borne it is restored.
• Indian ancestry: prayaschitta in the Dharmasastra. European ancestry: the penitentiary and the Pennsylvania separate system.
• Traces in Indian law: Article 20(2) and section 337 of the Bharatiya Nagarik Suraksha Sanhita 2023; section 12 of the Probation of Offenders Act 1958; the remission system; composition under section 359; and remorse as a mitigating circumstance, which Bachan Singh restored.
• Criticisms: the mechanism does not exist; penance is not punishment because it is self-inflicted; it supplies no measure; and it protects nobody.
• What survives is the demand for restoration, which no other theory makes and which Indian law almost entirely fails to meet.

Test yourself

1. State the expiation theory and its two ancestries. That the object of punishment is the annulment of guilt: the offender who undergoes the prescribed suffering has paid for the wrong, the wrong is wiped out, and the offender is restored. Its Indian ancestry is prayaschitta in the Dharmasastra, expiation undertaken by the offender and completed by restoration to standing. Its European ancestry is the penitentiary, whose name records the belief that solitude and reflection produce penitence.

2. Why is penance not punishment? Because punishment must be intentionally administered by human beings other than the offender. Self-imposed atonement fails that condition however painful it is, and once the state imposes expiation it becomes ordinary punishment with a religious explanation attached.

3. Give the strongest historical evidence against the theory's mechanism. The Pennsylvania separate system, in which prisoners were held in total solitude with work and a Bible on the theory that solitude produces penitence. It produced mental illness on a large scale and was abandoned by the systems that invented it, which is as close to a controlled experiment as this subject offers.

4. What survives of the theory, and how should the utility question be answered? Its claim that the offender who has been punished is entitled to be restored. No other theory makes that claim: deterrence, prevention, retribution and reformation are all complete when the sentence ends. Indian law records a conviction permanently and disqualifies on it, and its only institutional discharge is section 12 of the Probation of Offenders Act 1958, which applies to offenders released after admonition or on probation and not to those who have served a sentence. So the honest answer is that the theory's mechanism is superstition and its demand is right.

The last limb is the important one. Section 396 pays where nobody is convicted, which is a genuine break with the idea that compensation follows liability. A victim of an untraced offender has a remedy against the state.

Section 397, treatment of victims. All hospitals, public or private, whether run by the Central Government, a State Government, local bodies or any other person, shall immediately provide first aid or medical treatment free of cost to victims of specified offences and shall immediately inform the police.

The theory behind them

Restorative justice, as a body of thought, makes three claims.

Crime is an injury to people and relationships, not primarily a violation of a rule. It follows that the proper question is what repair is needed.

The parties should decide. The victim, the offender and the affected community, rather than professionals, are the people with a stake, and processes such as victim-offender mediation and conferencing bring them together.

Reintegration rather than stigma. The aim is to condemn the act and readmit the person, which connects the approach to the expiation theory's demand for restoration in [The Expiation Theory].

Where Indian law goes further than compensation

Compounding of offences, section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023: for one list of offences the person injured may compound, and for another only with the court's permission, and compounding has the effect of an acquittal. That is a restorative mechanism inside the ordinary law.

Plea bargaining, Chapter XXIII, whose section 291 requires the mutually satisfactory disposition to include compensation to the victim, and whose whole procedure requires the victim to participate. See [The Statutory Scheme of Plea Bargaining].

Probation with a compensation condition, section 5 of the Probation of Offenders Act 1958, which allows a court releasing an offender under section 3 or section 4 to order compensation for loss or injury and costs.

The fine payable to the victim in sections 65, 66 and 70 of the Bharatiya Nyaya Sanhita 2023, where the proviso requires the fine to be just and reasonable to meet the victim's medical expenses and rehabilitation and to be paid to the victim.

The judicial line

Narotam Singh v. State of Punjab, (1979) 4 SCC 505, worked in [The Reformative Theory], is the clearest Indian illustration. The Court permitted a bigamy conviction to be compounded on payment of forty thousand rupees to the complainant with her consent to divorce, reasoning that punitive incarceration would not restore harmony, that the complainant derived poor comfort from a severe sentence if she was left without means, and that compensation would instil a correctional responsibility in the offender.

Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, also worked there, directed the appellant to pay a fine of twelve hundred rupees to be made over to the victim, the Court holding that in white collar offences it is proper to insist upon reparation of the victims apart from any other sentence.

Both predate section 357 of the Code of Criminal Procedure 1973 becoming a habit, and both are judges reaching for a remedy the statute had only just provided.

A worked example

A shopkeeper is assaulted and his stock destroyed. The offender is convicted and is a wage earner with dependants.

What a purely punitive disposal does. Six months' imprisonment. The offender loses his job, his dependants lose their income, and the shopkeeper gets nothing.

What a restorative disposal does. A shorter sentence or a non-custodial one, with an order under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 that the offender pay compensation for the stock and the injury. The offender keeps the job that makes payment possible. The victim is made whole.

If the offender cannot pay. Section 396 allows the shopkeeper to apply to the Legal Services Authority under the State scheme, and the court may recommend it.

If the offender is never traced. Section 396 still allows an award, which is the provision's most important feature.

Where it will not work. Where the offender denies the offence, restorative processes have nothing to work with, because they presuppose acceptance of responsibility. And where the harm cannot be repaired at all, in a homicide, compensation is a palliative and not a repair.

The criticisms

It is not a theory of punishment. Compensation is a civil remedy in a criminal setting, and a system that responded to crime only by compensation would leave the wealthy able to buy their way out.

It depends on the offender's means. Two identical offences produce different outcomes because one offender can pay.

It presupposes an admission. Restorative processes cannot run against a person who denies the offence, which is most contested cases.

It can pressure the victim. A victim who wants nothing to do with the offender should not be drawn into a process, and section 396 is important precisely because it does not require the victim to deal with the offender at all.

And in India, the provisions are under-used. Courts do not routinely consider compensation, and State schemes vary widely in what they pay.

Quick revision

• Restorative justice treats crime as an injury to people, and asks what repair is needed rather than what the offender deserves.
• Section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023: compensation out of a fine, and compensation where no fine forms part of the sentence.
• Section 396: the State victim compensation scheme, which pays even where the offender is untraced or no trial takes place.
• Section 397: free first aid and medical treatment by all hospitals for victims of specified offences.
• Other restorative mechanisms: compounding, section 359; plea bargaining, which requires compensation to the victim under section 291; section 5 of the Probation of Offenders Act 1958; and the fine payable to the victim in sections 65, 66 and 70 of the Bharatiya Nyaya Sanhita 2023.
• Cases: Narotam Singh, (1979) 4 SCC 505; Mohammad Giasuddin, (1977) 3 SCC 287.
• Criticisms: not a theory of punishment, depends on means, presupposes an admission, may pressure the victim, and is under-used in India.

Test yourself

1. Which provision allows compensation where no fine is imposed, and why does that matter? Section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, whose later limb permits the court, where a fine does not form part of the sentence, to order the accused to pay compensation to the person who has suffered loss or injury. It matters because it makes compensation a disposal in its own right rather than merely a way of dividing up a fine.

2. What is remarkable about section 396? That it pays where nobody has been convicted. The victim compensation scheme prepared by each State Government in coordination with the Central Government allows an award where the offender is not traced or identified and no trial takes place, so a victim has a remedy against the state that does not depend on establishing anybody's liability.

3. Name three restorative mechanisms in Indian criminal law other than compensation. Compounding of offences under section 359 of the Bharatiya Nagarik Suraksha Sanhita 2023, which has the effect of an acquittal; plea bargaining under Chapter XXIII, whose section 291 requires the mutually satisfactory disposition to include compensation to the victim; and section 5 of the Probation of Offenders Act 1958, which allows a court releasing an offender to order compensation and costs.

4. Give two limits of the restorative approach. It presupposes that the offender accepts responsibility, so it has nothing to work with in a contested case, which is most cases. And it depends on the offender's means, so two identical offences produce different outcomes according to who can pay, which is the same defect the fine has.

Expiation. A penalty he can complete and after which he is restored, so that the conviction does not follow him for life.

Compensation. An order under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring him to compensate the victim for the loss of the hand and of the earnings, and, if he cannot pay, an application under the State scheme in section 396.

What a real court does. It imposes a term of imprisonment fixed by no stated principle, may or may not order compensation, and does not consider the other four at all. That gap between the six theories and the single ordinary practice is the subject of [India Without a Sentencing Policy], and it is the best conclusion an answer comparing the theories can reach.

The three questions, applied

From [What a Theory of Punishment Is]: why punish, whom may we punish, and how much.

Why punish at all? Retribution answers from desert; the other three forward looking theories from consequences; expiation from the discharge of guilt; compensation from the victim's loss.

Whom may we punish? Only retribution and expiation answer this directly, because both are triggered by the offence. Deterrence, prevention and reformation all have, in principle, no reason to confine themselves to the guilty, and every workable version of them imports the retributive limit.

How much? Retribution answers with proportion but cannot fix the scale. Deterrence answers with whatever works, which has no ceiling. Prevention answers with as long as the danger lasts, which has no ceiling. Reformation answers with as long as the treatment takes, which is indeterminate. Compensation answers with the extent of the loss, which is exact but has nothing to do with punishment.

That row is the argument for a mixed theory, and it should be the last thing an answer says before its conclusion.

What the theories agree on

Worth saying, because a comparison that finds only differences is incomplete.

All six accept that punishment requires a conviction, in practice if not in principle.

All six accept that the state and not the victim inflicts it, though compensation and restorative processes give the victim a part.

None of them, on its own, produces a workable system. A purely retributive system punishes when nothing is gained. A purely deterrent one has no ceiling. A purely preventive one detains for predictions. A purely reformative one is indeterminate. A purely expiatory one is a theology. A purely compensatory one lets the rich pay their way out.

What beginners get wrong

They rank the theories. There is no correct order and examiners do not expect one.

They pick a favourite and defend it. A comparison question asks for a comparison, and the conclusion should be about the mixture rather than about a winner.

They forget that a single sentence can serve several. A term of imprisonment for a serious offence is retributive in its length, deterrent in its publication, preventive in its duration and reformative in whatever the prison does. The theories are not competing sentences; they are competing reasons.

A worked example

One set of facts, five answers. Mahesh, aged forty, with two previous convictions for theft, is convicted of a third theft of goods worth sixty thousand rupees from his employer.

How the law resolves it. No single theory decides. Section 13 of the Bharatiya Nyaya Sanhita 2023 would not apply unless both offences fall within its Chapters and carry three years or more. The previous convictions bar admonition under section 3 of the Probation of Offenders Act 1958 and release under section 401 of the Sanhita, but not release under section 4 of that Act, which has no such bar. And the court sentences within the range, treating the record as an aggravating circumstance and the restitution as a mitigating one.

The lesson of the example. The theories are not rival statutes to choose between; they are the reasons a sentencer weighs, and Indian law has adopted all of them in different provisions.

Quick revision

• Retribution: backward looking, limited by desert, objection that it requires useless suffering.
• Deterrence: forward looking at others, no internal ceiling, weak evidence for severity.
• Prevention: forward looking at capacity, certain but temporary and expensive.
• Reformation: forward looking at character, disputed evidence and undeliverable in a bad prison.
• Expiation: aims at discharge of guilt and restoration, mechanism does not exist, demand is right.
• Compensation: aims at repair of the victim's loss, not a theory of punishment, depends on means.
• The three questions: only retribution and expiation confine punishment to the guilty; only retribution supplies a ceiling; none supplies the scale.
• Conclusion: a mixed theory, forward looking in general aim and retributive in its limits, is the only workable position, and it is the one Indian law occupies without saying so.

Test yourself

1. Which theories supply their own upper limit on the amount of punishment, and which do not? Only retribution supplies one, in the requirement that the punishment be no more than the offence deserves; expiation supplies one in principle but cannot state the measure; and compensation is limited by the extent of the loss, though it is not punishment. Deterrence, prevention and reformation supply none: more punishment may deter more, disable longer, or allow more treatment, so each has to borrow a ceiling from retributive proportion.

2. Which theories can, in principle, justify punishing an innocent person, and how is that answered? The three forward looking theories, deterrence, prevention and reformation, since each is justified by consequences and consequences might in a given case be improved by punishing an innocent person. It is answered by importing the retributive requirement that only the guilty may be punished, and, in the case of deterrence, by the further argument that a practice of punishing the innocent could not be concealed and would produce worse consequences overall.

3. Give a single sentence that serves four theories at once. A published term of imprisonment for a grave offence: it is retributive in being proportioned to the offence, deterrent in being known to others, preventive for its duration, and reformative to the extent that the prison provides education, work or treatment. The theories are competing reasons for a sentence rather than competing sentences.

4. What conclusion should a comparison of the theories reach? That no single theory produces a workable system, and that the defensible position is a mixed one in which the institution of punishment is justified by its forward looking effects while retributive desert supplies the limits: only the guilty, and only what the offence deserves. Indian law occupies that position in practice without having stated it.

Six theories, six sets of provisions, one statute book. That table is the answer.

What the courts have said

The crime and the criminal both. Bachan Singh v. State of Punjab, (1980) 2 SCC 684, requires the circumstances of the offender to be taken into account along with the circumstances of the crime, and lists mitigating circumstances two of which, the probability that the accused will not commit further violence and the probability that the accused can be reformed, are purely reformative, with the burden on the State to disprove them. The case is worked in [Bachan Singh and the Rarest of Rare].

Reformation as an object. Mohammad Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287, that punishment should be a process of re-shaping a person who has deteriorated into criminality and that a therapeutic rather than a terror outlook should prevail. Worked in [The Reformative Theory].

And reformation not displacing gravity. T. K. Gopal alias Gopi v. State of Karnataka, (2000) 6 SCC 168, worked in the same chapter, where the theory was affirmed and the sentence not reduced.

Compensation preferred to imprisonment where it does more good. Narotam Singh v. State of Punjab, (1979) 4 SCC 505, worked in the same chapter.

The position, stated

The defensible statement, and the one to write, is this.

In its general aim Indian law is forward looking. Punishment exists because a society without it would be worse, which is the utilitarian justification, and the legislature acts on deterrence when it fixes maxima.

In its limits Indian law is retributive. Only the guilty; only under a law in force at the time; only once; only in proportion; and only what the offence warrants. Those limits come from desert and from nowhere else.

In its choice within the limits Indian law is reformative in aspiration. The statute directs the court to the offender: section 258(2), section 402, and the whole of the Probation of Offenders Act 1958.

And in its treatment of the victim Indian law has become compensatory, late and partially.

That is a mixed theory, and it is the position most modern systems occupy. It is not a failure to choose; it is the recognition that no single theory produces a workable system, which is the conclusion in [The Theories Compared].

The gap between aspiration and practice

An honest answer does not stop at the statute book, because the mixture the statute prescribes is not the mixture the system delivers.

The reformative half is undeliverable. The Prisons Act 1894 does not mention reformation and the institutions cannot supply it. See [The Challenges Prison Reform Faces].

The probation half is under-used. A statute of 1958 designed to keep first offenders out of prison is applied far less often than its terms contemplate.

The compensatory half depends on courts remembering it. Sections 395 and 396 are not applied as a matter of course.

And the deterrent half is the one the legislature actually reaches for, because raising a maximum sentence is cheap and building investigative and judicial capacity is not.

So the mixture in practice is more deterrent and more retributive than the statute book suggests, and the reformative and compensatory provisions are the parts that are written and not performed. Saying that is the difference between an answer that reads the law and one that describes it.

A worked example

Two provisions of the same Sanhita, enacted on the same day.

Section 71: a person previously convicted of rape and convicted again shall be punished with imprisonment for the remainder of natural life, or with death. That is prevention and deterrence at their most extreme, with no room for the offender's circumstances at all.

The proviso to section 303(2): a first time offender who steals property worth less than five thousand rupees and returns it shall be punished with community service. That is reformation and compensation, with no room for deterrence at all.

Both are in the same statute and both were enacted together. That single comparison proves the mixed theory better than any general statement, and it is worth using.

Quick revision

• Indian law adopts no single theory and its statute book contains provisions expressing all six.
• Retribution: graded punishments, section 9 of the Bharatiya Nyaya Sanhita 2023, Article 20(1), section 25(1) of the Bharatiya Nagarik Suraksha Sanhita 2023.
• Deterrence: high maxima, mandatory minimums, the death penalty.
• Prevention: natural life sentences, section 13, section 394 of the Bharatiya Nagarik Suraksha Sanhita, the Criminal Procedure (Identification) Act 2022.
• Reformation: the Probation of Offenders Act 1958, sections 401 and 402, the Juvenile Justice Act 2015, community service.
• Expiation: Article 20(2), section 337, section 12 of the 1958 Act, remission.
• Compensation: sections 395 to 397, section 5 of the 1958 Act, section 291.
• The position: forward looking in general aim, retributive in its limits, reformative in its choice within the limits, compensatory towards the victim. A mixed theory.
• The delivered mixture is more deterrent and retributive than the prescribed one, because the reformative and compensatory provisions are under-performed.

Test yourself

1. Which theory has Indian law adopted? None, singly. Its statute book contains provisions expressing every one of them, and its courts require the circumstances of the crime and of the criminal to be weighed together. The defensible statement is that Indian law is forward looking in its general aim, retributive in its limits, reformative in its choice of sentence within those limits, and, recently and partially, compensatory in its treatment of the victim.

2. Give one provision expressing each of the six theories. Retribution: section 9 of the Bharatiya Nyaya Sanhita 2023, limiting punishment where an offence is made up of parts. Deterrence: the mandatory minimum sentences in sections 64 to 70. Prevention: section 13, enhanced punishment after a previous conviction. Reformation: section 4 of the Probation of Offenders Act 1958. Expiation: section 12 of that Act, removing the disqualification attaching to a conviction. Compensation: section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023.

3. Show the mixed theory from two provisions of the same statute. Section 71 of the Bharatiya Nyaya Sanhita 2023 punishes a repeat sexual offender with imprisonment for the remainder of natural life or with death, which is prevention and deterrence with no room for the offender's circumstances. The proviso to section 303(2) requires community service for a first time offender who steals property worth under five thousand rupees and returns it, which is reformation and compensation with no room for deterrence. Both were enacted in the same Sanhita on the same day.

4. What is the gap between the prescribed mixture and the delivered one? The reformative and compensatory provisions are the parts that are written and not performed: the prison system cannot deliver reformation because the Prisons Act 1894 is a custodial statute and the institutions are overcrowded; probation is used far less than the 1958 Act contemplates; and compensation under sections 395 and 396 is not ordered as a matter of course. The deterrent lever, raising maximum sentences, is the one the legislature reaches for because it is cheap. So the system delivers a more deterrent and retributive mixture than its own statutes prescribe.

Expiation would recast it. The guilt is discharged by the punishment, so the offender neither profits nor remains in debt.

Compensation makes it literally true. An order under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring the offender to compensate the victim removes the profit of the offence in the most direct way there is.

Is the statement true?

This is the part of the answer that earns marks, and the honest position has three parts.

It is true where detection is likely. For offences that are usually detected and prosecuted, the expected cost is real and the statement holds.

It is false where detection is unlikely. For a great many offences the probability of detection is low, so the expected cost is small however heavy the penalty. That is the whole argument in [Does Punishment Deter? The Evidence], and Bentham's own principle points the same way: the value of the punishment must not be less than what is sufficient to outweigh the profit of the offence, and where the probability of suffering it is low, no available punishment is sufficient.

It is false in a particular way for white collar crime. Detection is unlikely, prosecution is slow, sentences are light, and the gain is large. See [The Difficulty in Sentencing White Collar Criminals].

What follows for a penal system

The statement is best read as a standard rather than as a description. A penal system that makes it true is working; one that does not is not. That reading gives the answer a structure.

Raise the probability of detection, which is the only lever that changes the expected cost materially.

Reduce delay, because a cost long deferred is discounted, which is Beccaria's third condition.

Remove the profit directly, by compensation under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, by forfeiture under sections 154 and 155 of the Bharatiya Nyaya Sanhita 2023 in the two cases where it is available, and by the confiscation machinery in the special statutes.

And do not rely on severity alone, because raising a penalty that is unlikely to be imposed changes very little.

A worked example

A man defrauds twelve people of fifty thousand rupees each over three years and is convicted in the fourth year.

Did the conduct pay? Six lakh rupees, less what he spent, against a sentence and a fine. Whether it paid depends on the sentence, on whether the money is recovered, and on whether the twelve are compensated.

What makes the statement true here. A compensation order under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, so that the money goes back; a fine that exceeds the retained profit, since section 8(1) of the Bharatiya Nyaya Sanhita 2023 leaves the amount unlimited where none is expressed; and a sentence that reflects the sustained and planned character of the fraud.

What makes it false. If the money is not traced, if compensation is not ordered, if the fine is nominal and if the sentence is short, then the arithmetic favours the offender and the statement is simply untrue of his case.

And what the eleven undetected frauds do to it. If for every offender convicted several are not, the expected value of the conduct across all of them may be positive even where this one made a loss. Deterrence operates on that expectation and not on the outcome of a single case.

That last point is the strongest thing a candidate can say, and it takes two sentences.

What beginners get wrong

They treat the statement as a title and ignore it. It is the question.

They treat it as obviously true. It is a claim about the world and it is often false.

They treat it as obviously false and dismiss it. It is true where detection is likely, and it states the standard a working system should meet.

They attach it to the wrong theory. It is deterrent. Retribution has no interest in whether crime pays.

Quick revision

• The statement is a deterrent proposition: it claims that the expected costs of crime exceed its gains in the long run.
• "Finally" concedes that crime may pay in the short term.
• It is true where detection is likely and false where it is not, so its truth depends on certainty rather than on severity.
• It is in tension with the reformative theory, which aims at a change of disposition rather than at a calculation, and is made literally true by the compensatory approach.
• Read it as a standard: a working penal system makes it true by raising detection, reducing delay, and removing the profit through compensation, forfeiture and confiscation.
• Provisions: section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023; section 8(1) of the Bharatiya Nyaya Sanhita 2023; sections 154 and 155 of that Sanhita.
• Answer the statement. Do not merely list the theories under it.

Test yourself

1. To which theory does the statement belong, and why? To deterrence. Deterrence works by making the expected cost of an offence exceed its expected gain, so a claim that anti-social conduct does not finally pay is the deterrent theory's own assertion about the world. Retribution has no interest in whether crime pays, because it punishes for desert rather than to alter a calculation.

2. Is the statement true? It is true where the probability of detection and conviction is high, since the expected cost is then real. It is false where detection is unlikely, because the expected cost is small however heavy the penalty; that is the position for a great many offences and it is conspicuously the position for white collar crime, where detection is unlikely, prosecution is slow, sentences are light and the gain is large.

3. How is the statement in tension with the reformative theory? Because it gives the offender a prudential reason not to offend rather than a moral one. An offender persuaded only that crime does not pay has a reason to become better at avoiding detection, whereas reformation aims at a change of disposition so that the offender does not wish to offend at all.

4. Name three measures that would make the statement true, other than increasing the sentence. Raising the probability of detection and conviction, which is the only lever that materially changes the expected cost. Reducing delay, since a cost long deferred is discounted. And removing the profit directly through compensation to the victim under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023, forfeiture under sections 154 and 155 of the Bharatiya Nyaya Sanhita 2023, and confiscation under the special statutes.