Why the State Alone Punishes
Chapter Six
Syllabus topic 1, "Introductory"
Pages 21 to 24 of 806
In one line
The state punishes because it forbade the victim to, and everything that is distinctive about modern punishment follows from that exchange.
In the wording a student can write in an exam: the right to punish is a monopoly of the state. It was acquired historically by the state's suppression of private vengeance and self-help, and it is justified on the grounds that punishment by the injured party is unmeasured, self-perpetuating and unable to determine guilt impartially. The Constitution of India entrenches the monopoly: Article 21 provides that no person shall be deprived of life or personal liberty except according to procedure established by law, so any deprivation not authorised by law is itself unlawful.
Why the law has this at all
Consider the alternative honestly, because a student who has never considered it cannot explain why the state's monopoly is worth having.
If a man's brother is killed, and the law leaves the matter to him, four things follow. He decides guilt, and he is the least impartial person available. He decides the penalty, and he has no reason to stop short of what his grief demands. The family of the person he kills in return has now suffered a wrong of its own and will act on it. And a man too weak to avenge himself gets no remedy at all, so the protection of the law becomes a function of physical strength.
Those four problems are the whole case for the state's monopoly, and they map exactly onto the four features of a modern criminal trial: an impartial tribunal, a limited and proportionate penalty, finality, and equality before the law.
How the monopoly was acquired
The history is a movement from private settlement to public prosecution, and it happened in stages that are worth naming because the traces of each survive.
The blood feud. The injury is the family's, and the family answers it. Vengeance is a duty rather than a right.
Composition. The feud is bought off with a payment: wergild in Germanic law, the man-price. The state's earliest role is that of a broker fixing the tariff, and its earliest interest is in keeping the peace rather than in doing justice.
The king's peace. Certain wrongs come to be treated as offences against the ruler as well as against the victim, because they disturb the order the ruler is responsible for. Once that idea takes hold, the ruler has an interest of his own and begins to prosecute in his own name.
Public prosecution. The offence becomes the state's cause and the victim becomes a witness in it. That is the position today, and the case is entitled State versus the accused, not Victim versus the accused.
Why the State Alone Punishes
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.
Why the State Alone Punishes
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.
Why the State Alone Punishes
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.
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.