The Ideal System Measured Against India's
Chapter Twenty-Seven
Syllabus topic 1, "Introductory"
Pages 108 to 111 of 806
In one line
Measured against the seven requirements in the previous chapter, the Indian system passes on certainty, is thin on reasoning, narrow on disposals, weak on its institutions, late on the victim, and unequal in operation.
In the wording a student can write in an exam: the Indian penal system states its offences and punishments with reasonable certainty and provides the machinery of a reasoned sentence, but it has no sentencing policy, an unusually narrow range of disposals, a prison system governed by an Act of 1894 and unable to deliver the reformative purposes courts recite, victim compensation reached only in 1973 and 2009, and a pattern of operation in which poverty rather than culpability decides who is in custody.
Requirement by requirement
Certainty: largely met
Offences are defined by statute and punishments are fixed by the provisions creating them. Article 20(1) forbids retrospective punishment.
Two qualifications. Very wide maxima, an offence carrying "imprisonment which may extend to seven years, or fine, or both", give the offender no idea what to expect. And the replacement of three basic codes on 1 July 2024 means two bodies of law now run in parallel for years, one for old offences and one for new.
A reasoned sentence: machinery present, content absent
What exists. Section 258(2) of the Bharatiya Nagarik Suraksha Sanhita 2023 requires the accused to be heard on sentence. Section 393 requires reasons. Section 393(3) requires special reasons for death. 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 has not done so. Section 25(1) now requires the court to consider the gravity of the offences before ordering concurrent or consecutive running.
What is missing. Any statement of what the reasons are to be reasons about. There is no statutory list of aggravating and mitigating circumstances outside the death penalty jurisprudence, no guideline judgment binding across offences, and no sentencing council. See [India Without a Sentencing Policy].
Proportion: asserted, not secured
Proportion is stated as a principle in the decisions but there is no mechanism to deliver it. Two courts may pass sentences differing by years on indistinguishable facts, and unless the difference is gross the appellate courts will not interfere.
Range of disposals: the clearest failure
Six punishments, of which one arrived in 2024 and is confined to six offences. No suspended sentence. No means-related fine. No treatment orders. Probation exists and is used far less than the statute contemplates.
The consequence is visible in the composition of the prison population: a system with few alternatives imprisons.
The institution: governed by an Act of 1894
The Prisons Act 1894 does not mention reformation. It is an Act about custody, discipline, health and the prevention of escape. Every reformative purpose Indian courts recite has to be read into a statute written for a different purpose, or found in State rules and in the Model Prison Manual, which are administrative rather than statutory.
The Ideal System Measured Against India's
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.
The Ideal System Measured Against India's
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.
The Ideal System Measured Against India's
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.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.