Methods of Studying Criminology

Methods of Studying Criminology

Criminology is the science or study of crime. It is concerned with the conduct of individuals
which is prohibited by society and law. Criminology is a combination of two Latin words:
Crimen – crime
Logus or logy – science

It is the science or study of crime. It is concerned with the conduct of individuals which is
prohibited by society and law. It is a socio-legal study which seeks to discover the causes of
criminality and suggests appropriate remedies.

Statistical Method

 Purpose: To examine patterns of criminal behavior, test hypotheses, and make

inferences about populations.
 Application: Involves the collection, analysis, interpretation, presentation, and
organization of data related to crime and criminal behavior. Statistical methods help
criminologists identify trends, correlations, and patterns in criminal activity.

Scientific Method:

 Purpose: Involves a series of steps that help researchers gather, analyze, and interpret
data in a rigorous and objective manner.
 Application: Researchers follow a systematic process, including observation, hypothesis
formation, experimentation, data collection, analysis, and conclusion drawing. The
scientific method ensures that research is conducted in a structured and replicable way,
enhancing the credibility of findings in criminology.

Historical Method

 Purpose: Aims to provide an understanding of how crime and criminal justice systems
have evolved over time.
 Application: Involves the examination of historical records, documents, and events
related to crime and criminal justice. By studying the past, criminologists gain insights
into the factors that have influenced changes in criminal behavior, law enforcement,
and societal responses to crime.

Comparative Method:

 Purpose: Involves cross-national, cross-regional, and cross-cultural comparisons to

identify similarities and differences in crime patterns and criminal justice systems.
  Application: Criminologists use this method to analyze how various factors, such as legal
systems, cultural norms, and social structures, impact crime rates and criminal justice
outcomes. Comparative research can inform policy decisions by highlighting effective
strategies employed in different regions.

Experimental Method:

 Purpose: Testing the effectiveness of a particular crime prevention program.

 Application: Involves manipulating one or more independent variables to observe their
effect on a dependent variable. Criminologists might use experimental designs to assess
the impact of specific interventions or crime prevention strategies. Randomized
controlled trials (RCTs) are common in this method.

Psychological Method:

 Purpose: Understanding criminal behavior, its origins, and potential interventions.

 Application: Utilizes psychological theories and methodologies to study the
psychological aspects of criminal behavior. This includes examining factors such as
personality traits, cognitive processes, and emotional states that may contribute to
criminal conduct. Psychological methods can inform interventions and treatment
programs for individuals involved in the criminal justice system.

Case Study Method:

 Purpose: In-depth examination of a particular individual, group, or situation.

 Application: In criminology, case studies involve detailed analysis and investigation of
specific criminal cases, criminals, or criminal events. This method provides a rich,
contextual understanding of unique circumstances, contributing to the development of
theories or insights that may not be apparent in broader statistical analyses.

Clinical Method:

 Purpose: Involves direct interaction, such as patient and client interactions.

 Application: Often used in forensic psychology or counseling within the criminal justice
system. Clinicians work directly with individuals, such as offenders, victims, or witnesses,
to assess and address psychological issues related to criminal behavior. This method can
inform treatment plans, risk assessments, and rehabilitation strategies.
The history of punishment in India

Introduction

The concept of punishment, its explanation, and its concrete request and reasoning during the
past half-century have presented a clear idea of how hard work changes and socializes
wrongdoers in support of revenge and confinement. Punishment in its formation is now
recognized to be an integral revengeful practice, whatsoever may be the additional role of
revenge as reasoning or objective of punishment.

An abundant validation of punishment would continue by presenting that society wants the
hazard. The exercise of punishment since the aim of social edict cannot be reached or else
because it is partial to assume suffers from illegal violent behaviour to tolerate the cost of their
unfair treatment. Restraints on the use of vulnerable punishments are essential, given the ways
in which consultants and supremacy can be mistreated.

Background

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

This sophistication led to scepticism regarding the profitableness of the terrible aim of
rehabilitation inside the framework of existing penal philosophy. To those were additional
scepticism over the deterrent effects of penalty (whether special, general toward the
wrongdoer, or general, geared toward the public) and as a good goal to that left, apparently,
solely two doable rational aims to pursue within the apply of penalty beneath law social
defense through confinement, and retributivism.

However, even determinate sentencing wouldn’t be honest unless the sentences therefore
approved were the punishments that guilty offenders due. So was born the belief of ‘just
deserts’ in sentencing, that effectively combined the two ideas. By this route, the goals of
incapacitation and retribution came to dominate, and in some quarters fully succeed, the goals
of rehabilitation and deterrence within the minds of politicians and social theorists.

Concurrently with these generally socio-legal developments, philosophers were crafting their
own arguments, renewing classic views related to the names of Immanuel Kant and George
Wilhelm Friedrich Hegel to determine two principal ideas that work astonishingly well with
those reviewed high:

 First, philosophers urged that the reformation of guilty offenders isn’t the aim, or maybe
a subsidiary aim among many, of the practice of a penalty.
  Second, justice or fairness in penalty is the essential task of sentencing, and a simple
sentence takes its character from the blameworthiness of the wrongdoer and also the
damage the crime caused the victim and society.

Philosophers reached these conclusions as a result of they argued that there have been
irreducible aspects to punishment in the terrible definition of the application, with the norms
governing justice in a penalty, and within the purpose of the practice likewise.

As a result, the bottom was cut out from beneath the dominant penal policy of mid-century, the
indeterminate sentence within the service of the reintegrate ideal for wrongdoers behind the
bars. Probation was there because different sanctions were received associate enlarged roles,
however, release on parole came to a virtual finish. In its place was uniform determinate
sentencing, which might avoid the follies of unrealizable pardon goals and guarantee each
disabled and even-handed justice for all wrongdoers.

Meaning of Punishment

In the dictionary meaning, the term ‘punish’ means to make someone suffer from a crime or for
an unlawful behaviour or the imposition of penalty as punishment for an offense.

In criminal law, ‘punishment’ means any pain, penalty, suffering inflicted upon a person by the
authority of law and the sentence of the court for some crime committed by him or for his
exclusion of a duty enjoyed by law. The punishment maintains the law and order, it safeguards
the person and the property. The culprit abstains from wrongdoing for the fright of punishment
and therefore, the punishment and the law are indivisible.

The concept of punishment has also been recognized in the Dharmakshetra. In the Hindu
shastras, the king had the superiority to penalize the wrongdoer or law-breaker and protect the
law follower. Thus, it is clear-out that punishment is one of the oldest practices of managing
crime and criminality. The objective of the punishments and it makes changes with the
converting of times. The procedures for executing the sentences are also altered and
supporting human rights. As we recall our past we have seen that the death sentence was given
for a very small cause but it has been awarded only in the ‘rare cases’. Even still some societies
are there which use ancient forms of brutal punishment but the punishment has also evolved
along with civilization and has become less brutal.

Types of Punishment

In Ancient India

The history of the penal system states that the punishment was twisting, brutal, and ruthless in
nature. The objective of the punishment was deterrence and retribution. Due to his Penal
procedure, the crimes were less in numbers. Such punishments are categorized under the
following:
Capital Punishment

Capital punishment means the legally authorized killing of someone as a punishment of a crime,
a death penalty for a crime. In simple words, it means a government-sanctioned practise where
a person is put to death by the state as a punishment for a crime. In ancient times, capital
punishment was executed for every small crime. It is the most extreme form of punishment.
The procedures of execution of the death penalty have varied from time to time.

Corporeal Punishment

It means a punishment that is intended to cause physical pain on a person. It is also known as
physical punishment. It is a punishment for the violation of law which involves the infliction of
pain on the body. The objective behind corporeal punishment is not only to punish the offender
but also to prevent the repetition of the offense by such offender or any other person.

Social Punishment

It is a punishment in which a person is restrained to make any kind of contract from the other
persons or to move him at other places where he has no contract with the other persons can
help him in any manner otherwise he is also liable for the punishment for it.

Financial Punishment

It is also known as imposing for fine. It was the common way of punishment which was not
significant in nature and it was assigned specially for the breach of traffic rules, revenue laws,
and minor crime. It also includes the payment of compensation to the victims of the crime and
also the payment of the costs of prosecution.

In modern India

Although some of the societies are still using the ancient forms of the punishments, the
punishments have also evolved along with the civilization and become less brutal or harsh.
Now, the severity of the punishment depends on the crime. If the person commits a serious
crime, he shall be liable to be punishable with the severe forms of punishment. In industrialized
societies, the forms of punishment are either fines or terms of imprisonment or both. The
objective behind such punishment is to correct unlawful behavior rather than directly punish
wrongdoers. According to Section 53 of the Indian Penal Code, the principal forms of
punishments to which offenders are liable are as follows:

Capital Punishment (Death sentence)

As we have already studied that capital punishment means the infliction of death by an
authority. In modern times, capital punishment is the most severe punishment of all, which is
given for severe offense. It is the most debated topic among modern penologists. It is not
awarded for small offenses just like in early times or ancient times. It is given for the case of a
severe offense. As society develops the concept and producer of punishment have been
changed. It is awarded only in the ‘rarest of rare cases’ under the Indian Penal Code. there are
some offenses under the Indian Penal Code, in which capital punishment may be given by the
court:

 Under Section 121, states that waging, or making an attempt to wage war against the
government of India.
 Under Section 132: Abetment of mutiny, if mutiny is performed.
 Under Section 194: Giving or Fabricating False Evidence upon which an innocent person
suffers death.
 Under Section 302: Punishment for Murder.
 Under Section 303: Murder by Life Convict.
 Under Section 305: Abetment of Suicide of a Minor or an Insane or an intoxicated
person.
 Under Section 307: Attempt to Murder by a person who is under sentence of life
imprisonment, if the hurt is caused.
 Under Section 364A: Kidnapping for Ransom etc.
 Under Section 396: Dacoity with Murder.

After the Criminal Law (Amendment) Act, 2013 the following are the offenses under the Indian
Penal Code in which the death penalty may be awarded by the court:

 Under Section 376A: Punishment for rape resulting in death or permanent vegetative
state.
 Under Section 376E: Punishment for repeat wrongdoer of rape.

Life imprisonment

Life imprisonment means a person shall remain in jail for the rest of his entire life. It is one of
the best alternatives to the death sentence for those offenses in which either punishment can
be awarded. There is a fixed term of life imprisonment but in case of the fraction of terms, it
should be 20 years under Section 57 of the Indian Penal Code.

Imprisonment

In dictionary meaning, an imprisonment is an act of putting someone in prison or in jail as a

legal punishment. The imprisonment is having three types and they are as follows:

 Rigorous Imprisonment: Generally, it means ‘hard labor’. In this type of imprisonment,

the offender is compelled to do hard labor or hard work in the jail such as grinding corn,
digging the earth, drawing water, etc.
  Simple Imprisonment: In this type of imprisonment the offender is confined to jail
simply and he is not compelled to do any kind of work but they can be asked to work at
their own choice with wages.
 Solitary Confinement: It means keeping a person isolated from any kind of contact with
the outside world. It differs from a view that feeling of loveliness may produce an
influence on the mind of the offender and thus change his mindset. Section 73 and 74 of
the Indian Penal Code provides for solitary confinement.

Forfeiture of Property

In dictionaries, the ‘forfeiture’ means something that is lost or surrendered as a penalty and the
word forfeiture of property means the loss of property or money because of a breach of legal
obligation. There are three sections in the Indian Penal Code that described the forfeiture of the
property, and they are:

 Under Section 126: Property used or intended to be used in committing depredations on

the territories of friendly countries.
 Under Section 125 & 127: Property received with the knowledge that the same has been
taken by waging war or committing a robbery.
 Under Section 169: property purchased by a public servant who is legally banned to
purchase for such property.

Fine

Generally fine means Imposing of monetary liability on an accused in consequences of the

offense committed by him. There are some offenses which provide a fine with imprisonment.
The amount of fine depends upon the commands of the court.

Introduction

Punishment is the most prominent feature of criminal law. Every society has its own way of
social control for which it frames certain laws and also mentions the deterrents attached to
them. Punishment is the consequence of an unpleasant act that the wrongdoer commits.
Simply put, the fundamental aim of punishment is to give relief to the aggrieved party and to
maintain law and order in society. Punishment can also be termed as the imposition of some
form of deprivation by withholding rights that a person is legally entitled to. This article aims to
bring to its readers a simple explanation of the theories of punishment that helps the criminal
justice system function from time to time.

Objects of punishment

1. To protect society from mischievous elements by deterring potential offenders.

2. To prevent actual offenders from committing further offences.
3. To eradicate evils and reform criminals and turn them into law-abiding citizens.
 4. To administrate justice partly by inflicting pain to deter criminals and others from
indulging in crime and partly by reforming criminals.
5. To maintain rules and regulations for a crime-free country.

An insight of theories of punishment

Theories of punishment generally contain policies regarding the handling of crimes and
criminals. The theory of punishment deals with the principles on the basis of which punishment
is to be given to the offender, with the object of safeguarding a society deprived of law and
order. There are four types of theories of punishment.

1. Deterrent theory.
2. Retributive theory.
3. Preventive theory.
4. Reformative theory.

Deterrent theory of punishment

The founder of this theory is Jeremy Benrhem, and this theory is based on the principle of
hedonism which says that a man would be deterred from committing a crime if the punishment
applied was swift, certain, and severe.

This theory focuses on deterring offenders from criminality or repeating the same crime in the
future. This theory is a lesson to members of society who experience the consequences of that
crime. It creates fear of punishment in like-minded people.

There should be a nexus between the crime committed and the punishment inflicted for that.
While deciding on the punishment, the following should be taken into consideration;

1) The seriousness of the crime – Punishment should be given according to the seriousness of
the crime committed, for e.g one can’t award a death sentence for pickpocketing.

2) The gravity of crime – The consequences of the punishment inflicted have to be taken into
consideration alongside taking into account the victim’s satisfaction concerning the same. For
e.g, if Mr.X is murdered by Mr.Y then if Mr.Y is giving one-time compensation of Rs.5 lakhs to
X’s family, is it sufficient if he is the only bread earner of the family?

3) Impact on the general public – It is most important to consider what will be the effect of that
punishment in the minds of the general public. Are they taking lessons from that? For example,
traffic police are collecting fines for not wearing helmets, but do people follow this rule? Are
they really serious about fines and rules?
In the case of the State of H.P.v. Nirmala Devi (2017), the court of law had opined that if the
crime done is heinous and serious against society then the deterrent theory becomes more
relevant, for those guilty will be punished to deter other prospective offenders.

Criticism of deterrence theory

1. Though this theory intends to deter people from committing crimes or repeating the
same crime, it has failed to serve its purpose. It has proved ineffective in checking
crimes and the fact that excessive harshness of punishment tends to defeat its purpose
by arousing the public’s sympathy towards those who are subjected to such
punishment.
2. Punishment loses its essence once the criminal is punished. For example, in the Delhi
gang rape case, familiarly known as the Nirbhaya case, all 4 accused were hanged for
their heinous crime but the offence of rape continues to happen. Thus the question as
to whether the deterrent theory of punishment serves its purpose remains arising in
people’s minds.
3. It does not give a chance to reform the accused.

Retributive theory of punishment

This theory is based on the famous saying that a ‘Tit for Tat’, ‘ Eye for Eye’ or’ Teeth for Teeth’.
The main motive of this theory is to inflict a similar amount of pain endured by the aggrieved
party because of the offender’s activity. Put simply, it can be said that every punishment is
retributive to a certain extent for the purpose of punishment itself is to restore peace and
harmony in society. This theory is harsher than other theories.

Owing to humanitarian grounds, this theory of punishment is not much on the favourable side
for it causes harm to the accused in a greater way. Therefore, the most important thing to
consider while awarding punishment is the balance between the aggravating and the mitigating
factors involved in the offence committed.

Criticism of the retributive theory

As per the development of society, this type of punishment was banned due to the following
criticism.

1. It is difficult to determine the proportion of pain or revenge in this type of punishment,

meaning to what and to what extent the pain should be returned.
2. The entire natural justice principle will collapse if everyone takes revenge on each other
according to their hate and the injury caused.

Preventive theory of punishment

Unlike other theories, this theory aims to prevent crime rather than take revenge. This theory is
also called the disablement theory. Put simply, we can understand the nature of this theory
with a simple example: when we were in school, our teachers used to make the mischievous
students stand out of the classroom, for disturbing the whole class. This punishment by the
teacher prevents other students from disturbing the class due to fear of punishment. In the
same way, this theory talks about eliminating the accused from society to prevent the
repetition of his crime again. By preventing those criminals, society protects itself against anti-
social order in general. Prevention of these criminals can be done by giving them death
punishment or life imprisonment. Separation of these criminals from society prevents other
prospective offenders from committing crimes.

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

Criticism surrounding the retributive theory of punishment

While the retributive theory promotes the dissertation of the offender, the same has severe
consequences and difficulties inflicted upon the accused. It is ideal to note that the concept of
morality being subjective by its very nature makes it difficult to deliver punishments for crimes
committed. Therefore, the immorality of crimes needs to be comparable.

Reformative theory of punishment

The name of this theory itself implies what its nature has to say. This theory helps to reform
criminals, thereby transforming them into law-abiding citizens. Nobody is indeed a criminal by
birth, crimes sometimes happen accidentally or situationally. In this case, the offender should
get another chance to rectify his mistake. For this, there is the facility of correctional homes,
juvenile homes, training schools, and reformatories. The main object of this theory is the
rehabilitation of inmates.

It was the case of Dharambir v. State of Uttar Pradesh (1979), which became the initiation of
the concept of open jails in India which generally helps in reforming young offenders. Further,
the Supreme Court of India, while deciding the case of Musa Khan v. State of Maharashtra
(1976), had observed that the reformative system prevented juveniles from becoming
hardened criminals.

Criticism surrounding the reformative theory of punishment

1. This theory only works for juvenile and first-time offenders and not for hardened
criminals who have committed multiple crimes.
2. The reformative theory of punishment is sometimes considered not justifiable for the
aggrieved party subjected to prejudice by the offender.
Conclusion

The main purpose behind inflicting punishment on the offender, accused of an offence, is to
restore law and order in society. In this process of awarding punishment, both the interest of
the aggrieved party as well as the accused needs to be taken into consideration. One must not
forget that awarding punishment should be directly proportional to the gravity of the crime
caused by the offender. Keeping the same in mind, alongside the need to curb crime from
happening at a rampant rate in society, punishment needs to be awarded. When it comes to
the theories discussed in this article, they serve as a jurisprudential value for the criminal justice
system to frame punishments according to the crime committed. These theories have been
significant in helping the legislators and the judiciary frame and interpret provisions of
punishment, respectively, for a better tomorrow.
What is retributive theory of punishment

The retributive theory of punishment relies on the foundation that crimes have consequences,
and the consequences should be proportional to the crime of the individual. Immanuel Kant
was one of the biggest advocates of retributive punishment and provided multiple practical
aspects of its application. He is the most extensively read author on retributive theory. His
books described retributivism as providing punishment to the offender just because the
criminal deserves it. This fundamental aspect of retributivism is considered both its strength
and weakness.

Retributive theory emphasises that since crime is a negation of rights, the punishment cancels
the crime. Punishment is merely the negation of the negation. It can also be termed as two
wrongs to restore a right. The Doctrine of Correctional Vengeance gives the basic idea of
retributive theory. This doctrine states that when society, trying to get justice, demands the
authorities to inflict revengeful punishments on criminals to get justice for the victims, it is said
to exhibit correctional vengeance.

The retributive theory of punishment has consistently refrained from justifying the punishment
of the innocent. In contrast to other theories, it does not employ offenders to achieve
additional objectives, such as serving as a deterrent or setting an example.The only goal is to
provide justice to the victim and punish the offender for the wrongs they have committed. The
severity of the punishment is decided on a proportionate basis. The punishment is equivalent to
the moral liability or blameworthiness of the offender. This theory provides a clear way of
distinguishing who deserves punishment and who doesn’t. Punishment, therefore, is only given
based on guilt. Retributive punishment acts as a strong deterrent. It helps in giving moral justice
to the victim. It instils a feeling of trust within society towards the judiciary.

Origin and basis of retributive theory of punishment

Retribution, one of the oldest concepts in moral philosophy, is prominently featured in various
religious texts. Within Christianity, numerous references to punishment for wrongdoing can be
found, with the belief that sinners will face consequences for their actions in the afterlife.
Hindus and Jains attribute retribution to ‘Karma’. The earliest application of retributive theory
can be observed in “Mahabharata”. It has several instances with very good examples of how
retributive punishment should be inflicted. Arjun was about to leave the battlefield during the
war. He was too scared and had moral objections to go against his relatives. Lord Krishna
conveyed to Arjuna that war should only be resorted to when all other paths are closed. Krishna
explained that if, in such circumstances, an individual refuses to fight, it would result in grave
injustice to society as a whole.

Further, the Quran discusses retribution in the form of punishment for the wicked and
disobedient. The Islamic rulers of India were the ones who introduced Islamic law. Theft,
adultery, murder, and all heinous offences warrant grave punishments under Sharia law.
Punishments like amputation of limbs, beheading, and stoning were prescribed. The objectives
of all such punishments were rooted in the principles of delivering justice to the aggrieved.

Paranjape, in his book titled, ‘Criminology, Penology, and ‘Studies in Jurisprudence and Legal
Theory, talks about various theories of punishment. In the book, he explained the retributive
theory of punishment as a theory emphasising that the pain proportional to the pain of the
victim should be inflicted on the offender.

In 1901 C.E., a French explorer found a set of inscriptions at Susa. This code, with around 282
laws, was enacted by Hammurabi. He was a Babylonian king and enacted one of the oldest
complete legal codes. The code had provisions that, if a person causes a man of rank to lose his
limb, let the limb of the offender be shattered. Similar philosophies were applied to the eyes
and teeth. However, the codes dictated that the injuries of a poor man could be compensated
with silver. His principle was based on equal and direct retribution and was governed by the
state.

Cesare Beccaria, an Italian criminologist, is known for his authorship of multiple books on crime
and punishment. In contrast to other authors who emphasised the principle of lex talionis,
Beccaria focused more on retribution or revenge. From the 1970s onward, legal scholars,
philosophers, state courts, and the supreme courts across the world saw a huge rise in the
popularity of the retributive theory of punishment. Over the years, retributive theory has
manifested itself in various legislation and Supreme Court judgements in the form of severe
punishments and the death penalty.

Lex talionis and retributive theory

Lex talionis, in Latin, means the law of retaliation. It is often expressed under the motto, “Let
the punishment fit the crime.” In ancient Rome and Palestine, bodily harm, injury, and theft
were considered private wrongs. As such, the matter was settled between the victim and the
wrongdoer. It was usually done without the involvement of the state. According to this
principle, talion was the ultimate satisfaction the injured person could demand. This could be
an eye for an eye or money. The vengeance-based forms of lex talionis have been severely
criticised. It potentially begins an endless cycle of hurt and violence.

Principles of retributive theory of punishment

H.L.A. Hart was a legal professional and philosopher. He gave new insights into the retributive
theory of punishment. He believed that the existing theorists who wrote on retributive
punishment did not emphasise some crucial elements of the theory. Therefore, he proposed a
theory in which he emphasised three principles. Desert is considered the fourth principle of
retribution. All different variants of the retributive theory are formulated using these three
principles as the foundation. Variations and amendments to these principles are used to create
the theory. Those three principles are as follows:
Principle of responsibility

The principle of responsibility indicates that a person may only be punished if he/she has
voluntarily done something wrong. According to the retributive theory of punishment, a guilty
mind and a guilty conscience are essential. In short, the person will only be eligible for
punishment if they are guilty of the act. These principles provided by Hart are not exclusive to
retributive theory. They apply to almost all theories of punishment, just in a different way and
with different objectives. This principle provides an answer to the question, “What sort of
conduct may be punished?” However, these principles raise a very important question when
talking about responsibility. What would be the stance of the retributive theory of punishment
in cases of strict liability offences? Strict liability, according to tort and criminal law, is an
offence when the defendant is guilty of committing an action regardless of the intent to cause
harm. Retributive punishment theories, however, fail to provide solutions to the question of
strict liability.

Principle of proportionality

The punishment for an offence should either be equivalent to or match the intensity of the
offence. Retributive punishment embodies the idea of something being paid back by the
wrongdoer. This principle provides an answer to the question, ”How severely?” It must be
similar to the crimes committed against the victim. It relies heavily on the concepts of punitive
harm, deprivation, and suffering. Some philosophers and legal writers have suggested a few
modifications to the principles of Hart. One suggested modification is that punishment under
this theory will only be valid if it causes harm to the offender.

Principle of just requital

This principle of retributive theory addresses the question of why punishment is essential. It
offers a rationale for penalising the offender. It asserts that punishment rectifies the moral
wrongs committed by the criminal. Proponents of retributivism say that punishment rights
moral evils, therefore it is morally good. This principle advocates for the victims. It says that the
victims are entitled to see the wrongdoer getting punished. Non-retributivists generally oppose
this aspect of the theory, as they argue that two wrongs do not make a right.

Desert

This concept focuses on culpable acts and omissions. The principle states that punishment may
be imposed for the person’s bad faith, fraud, or wilful misconduct in carrying out his
obligations. Hart’s model discussed above omits the principles of the desert. Some legal
philosophers claim that even though Hart does not explicitly talk about the concept of desert, it
can be observed in his first principle of responsibility. The desert can be seen as an additional
fundamental principle of retributive justice. Desert, in a sense, is a moral concept. It can be
analysed as a relation between the person who deserves something, what they deserve, and in
what virtue. Some models that include the concept of desert categorise it into three specific
categories based on the questions they answer. They are the desert object, the desert subject,
and the desert basis. The concept of the desert also talks about who can appropriately give the
desert subjects what they deserve. They can be referred to as desert agents. Let’s dive a little
deeper into all the aspects of the desert.

Desert subject

In the retributive theory of punishment, it is fairly easy to determine the subject of the desert.
It is simply the wrongdoer. The problem arises when the offender is either a child or an insane
adult. Similar problems arise in cases where the offenders are entities like the state or
corporations. In the above-mentioned cases, it is questionable if the party being punished can
understand that they are being condemned. Small children and insane people cannot
understand the harm caused by them and its consequences.

Desert object

Desert object helps us answer the question of what crime deserves what punishment. It can
help us categorise different punishments for different wrongs. Retributivism claims that it is
unjust to punish the wrongdoer more harshly than is deserved. Disproportionate punishments
are wrong for both the criminal and the victim. It is equated with punishing an innocent person.
Concepts like plea bargaining are not usually entertained by retributivists.

Desert basis

The desert basis deals with the relevant kinds of wrong that can be punished under retributive
theory. This discusses two important questions of the retributive theory. Murders and rapes are
grave offences. Punishments for them can be defined; however, what would constitute an
attempt is debated. In cases where the mental state of the offenders is less culpable, the
punishment becomes less obvious. The retributive theory of punishment allows punishments
for harms that are not caused only by moral wrongs.

Types of retributivism

There are a considerably large number of variations in retributive theory. These different types
have very minute differences.

Negative and positive retributivism

Negative or weak retributivism asserts that based on the crime, the wrongdoer must not be
punished more than the wrongdoer deserves. Positive or strong retributivism claims the
opposite. It emphasises the fullest extent of punishment on the basis of the offender’s just
deserts.

Moralistic and legalistic retributivism

Different versions of retributive theory also differ on the basis of what the punishment is
imposed for. In moralistic retributivism, moral culpability is considered central. It makes
offences punishable even if they do not amount to a violation of the law. On the other hand,
legalistic retributivism punishes the violation of a law even if there is no moral wrongdoing.
There is also a combined version of these two variations of retributive theory. In this context,
morally culpable offences as well as violations of criminal law are necessary individually for the
justification of punishment.

Communicative and consequentialist retributivism

Communicative retributivism is yet another approach to retributive theory. This variation holds
some scepticism over harsh treatments. Its core idea is to express strong disapproval of
wrongdoing. It is often considered the default position of retributivists. Consequentialist
retributivism also exists, which is quite different from regular retributivism. It is based on
conceptual and logical consequences. Limiting retributivism limits the constraints of
proportionality. Comparative proportionality is one of the major factors that determine the
punishment for a crime.

Deterrent Retributivism

Retribution is not primarily focused on deterrence. However, the public spectacle created by
retributive punishment may act as a deterrent for potential offenders. The idea is that
witnessing the offender face the consequences of his/her actions discourages others from
engaging in similar criminal behaviour. Retributive punishments reinforce the shared values of
the community by punishing individuals who violate moral principles and societal norms.
Ensuring that offenders face the consequences of their crimes and retribution seeks to provide
justice to victims in that form. Holding perpetrators accountable restores the confidence of the
victims in the system. This encourages the victims to report crimes and cooperate with law
enforcement. All of these indirectly contribute to crime reduction.

Retributive theory of punishment in India

In ancient India, punishment philosophies were primarily focused on rehabilitation and

reformation. It has emphasised the importance of moral and ethical principles in changing
criminal behaviour rather than retribution. British colonialism saw a shift towards a more
punitive and disciplinary approach. However, in recent years, holistic and restorative
approaches to punishment have been gaining recognition. Overall, an interplay between
historical, cultural, and social factors is reflected in the growth of punishment philosophies in
India. Indian public attitudes towards crime and justice have significantly changed with the
spread of social media.

Despite the shift to preventive and reformative theories of punishment, glimpses of the
application of the retributive theory of punishment are visible in the legislation as well as
landmark cases in India. The penalties are proportionate to the severity of the crime. Indian
courts, while sentencing consider both the crime and the criminal. An approach that takes into
account all the various factors and circumstances leading up to the crime. Close attention is
paid to the criminal’s social and economic circumstances. It is ensured that the sentences are
just. It is usually tailored to the specific circumstances of the case. This aligns with the
retributive principles of punishment. The punishment corresponds to the seriousness of the
wrongdoing.

Death penalty in India is retained for only heinous offences. Death penalties are guided by the
principles of proportionality. Hence, they are often discussed in the context of retribution. The
supporters of this theory argue that for the most heinous crimes, it is the only just punishment.
In India, judges have certain discretion when giving out sentences, which allows them the
liberty to decide on the punishment while staying within the ambit of the punishment
prescribed according to the legislation. However, the checks and balances, as well as the
appeals system, ensure that discretion is exercised judiciously. It is ensured, according to the
retributive principles, that the punishment is neither too lenient nor excessively harsh.

Let’s look at a few landmark cases to understand the application of retributive principles in
India.

In Anwar Ahmad v. State of Uttar Pradesh and Anr. (1975) before the trial and conviction, the
convict had already undergone a six-month imprisonment term. Later, he was officially
sentenced to six months in prison. The Court held that it was not necessary to sentence him
again since the required ‘blemish’ had already been imposed upon him. Following the principle
of retributive punishment, the court reasoned that it would inflict a very big loss on the family
as well. The principle of proportionality was enforced in this judgement.

In Sri Ashim Dutta Alias Nilu v. State of West Bengal (1998), the application of both deterrent
and retributive punishment was observed. It was done to prevent the recurrence of the
offence. Rapid societal progress and increased advancement in science and technology have led
to a change in the outlook of people towards punishment. Due to an increase in literacy rates
people have started thinking differently about punishments. Experts in different branches of
knowledge have been trying to understand the nuances of the theory. The retributive theory of
an eye for an eye and a tooth for a tooth is no longer considered the correct approach.

The Delhi gang rape and murder case (2012) is another great example of the application of the
retributive theory of punishment. The case is a tragic and notorious incident that sparked
widespread outrage among the Indian population. Every discussion about retributive
punishment in India discusses this case. In this Supreme Court judgement, four out of six felons
were sentenced and hanged. Retributive punishment was given to the convicts involved in the
extremely heinous Nirbhaya case. This judgement was much awaited and celebrated by society.

However, after such judgements, jurists and policymakers in India questioned whether
retributive punishments like the death penalty really are the best ways to deal with crime. The
262nd report of the Law Commission of India, chaired by Justice A.P. Shah, discussed the death
penalty in 2015. The commission concluded that India should make its first move towards the
abolition of the death penalty. The commission claimed that there is no justification for treating
terrorism differently from other cases. The commission discussed the concerns of lawmakers in
mind. They debated the abolition of the death penalty for terrorism-related offences and
waging war. Therefore, the commission suggested the abolition of the death penalty for all
offences other than terrorism-related offences.

Criticism of retributive theory of punishment

The main criticism of this theory is that punishment per se is not a remedy for the crime of the
offender. Critics say that it just aggravates the mischief. Society sees punishment in itself as an
evil curing evil. The only reason it is justified is the faith that it yields better results. The
application of the retributive principle is filled with inconsistencies within the legal system.

Retributivism is quite often criticised because it fails to consider the specific circumstances
surrounding a crime. Sometimes giving the eye for an eye punishment defeats the purpose of
the punishment. Let’s take an example, What would be the punishment if a person raped
someone? Capital punishments are given as a retributive measure. In this case, the basic
principle of retribution suggests we give the person back what he did, i.e., sex. However, it
would probably be more pleasurable for a criminal than torture for him. The root causes of
crime often go unnoticed because retributive punishments focus on punishing past offences.

This theory leads to society developing feelings of vengeance. This is followed by destructive
tendencies. This raises ethical questions regarding the motivations behind punishment.
Revenge is like wild justice. Critics argue that the retributive principle may help enforce the rule
of the jungle but cannot ensure the rule of law in a civil society. Sometimes the punishments
become disproportionate to the grievousness of the crime.

Consequences of a shift to retributive theory of punishment

There was a comparative study undertaken to compare the outcomes of retributive

punishment and rehabilitative punishment. They examined the Tihar Jail in India and Halden
Prison in Norway. This study objectively compares the jails, conditions, infrastructure, and
treatment of prisoners. The study concluded that the Norwegian system was better. Norway
focuses on the social and moral rehabilitation of offenders, while Indian prison systems are
understaffed and the offenders are subject to bad treatment. The rate of convicts who go back
to a life of crime in Norway is much less than in India.

Countries like the United States of America, Saudi Arabia, Brazil, India, and the United Kingdom
all have aspects of the retributive theory of punishment in their legal systems. There are also
disparities in sentencing based on race, socioeconomic status, and political influence. In the
states, African Americans, Hispanics and Mexicans are much more likely to get higher
sentences. Due to the private prison system, the principles of retributive theory have been
applied more often than necessary. The incarceration rates have increased exponentially. In
Sudan, a man’s hand was amputated for theft. These raise multiple human rights and ethical
considerations. Countries like Brazil and India have problems with overcrowded prisons due to
a retributive approach. This puts a strain on the prison facilities, and there isn’t sufficient
investment in rehabilitation. This leads to convicts relapsing their way into the prison system
again.

Conclusion

In conclusion, the retributive theory of punishment stands as a significant philosophy within the
realm of criminal justice. It has endured the test of time and has still managed to hold its
significance. Retribution has played a central role in the creation of legal systems around the
world. It influences societal attitudes towards justice. However, the retributive theory has its
challenges and criticisms. Moral scepticism and concerns about potential errors have always
been at the forefront of debates. The irreversibility of punitive measures such as the death
penalty forces the sentence to make sure that the right person is convicted. Moreover,
retributive theory coexists in a dynamic landscape. This landscape is filled with multiple
opinions on justice. Philosophers, legislators and legal professionals have had differing opinions
on utilitarianism, rehabilitative approaches, and human rights principles.

With evolving societies, the discourse surrounding the effectiveness of retribution has come
into question. A detailed understanding of all the different theories of punishment helps create
a balanced approach to punishment. Striking the right balance between retribution, deterrence,
and rehabilitation can help reform the criminal justice system. Societal protection remains a
challenge for all parties involved in law-making and law enforcement. Whether retribution
maintains its prominence and adapts to the changing requirements of the era is questionable.
Sociology of Punishment

Sociologists debate the purpose of punishment.

Punishment has several purposes:

PREVENTION

Rehabilitation ‐ one key purpose of punishment is to rehabilitate the offender; to ensure
that they reform their ways and do no go on to commit more crime in the future.

Deterrence ‐ significant punishments can act as a deterrent to other people considering
committing the same crime. If someone receives a large fine or a long prison sentence for a
particular misdemeanour, this should discourage others from acting similarly in the future (this
depends on criminals making a rational choice).

Incapacitation ‐ some punishments, such as prison sentences, directly prevent crime in
the sense that the criminal is not able to carry out further crimes because they are physically
prevented from doing so. The most extreme example of this is, of course, a death sentence.

COMPENSATION / RESTORATION

Fines – some crimes are punished by paying a fine or financial compensation to cover the cost
of the damage they have caused.

Restorative justice – there are various approaches to restorative justice where people are
encouraged to make amends for their wrong‐doing. This can include meeting their
victims as well as carrying out activities that restore things to how they were prior to the crime.

RETRIBUTION

For many in society, not least the victims of crime, punishment is about the criminal paying for
their crime and for justice to be seen to be done. The criminal has caused harm and therefore
some harm should be done to them in response.

Sociologists debate the purpose of punishment.

One of the key debates is between left and right realists.

Right realists emphasise the deterrence role of punishment: if criminals make a rational choice
to offend and see people are punished severely for their transgressions, they should make a
rational choice not to offend.
Left realists emphasise restorative justice and the idea that a key role of punishment is to make
amends for the harm caused.

The sociology of punishment links closely to power and stratification and particularly to power.
Those who hand out punishments are in a position of power over those who have committed
crimes as well as those who are suspected of committing crimes and those who might consider
doing so in the future. Surveillance is also very much about power. Individuals have less power
and free will because of the awareness of being watched and judged by those who have power
over them. This includes, but is not restricted to, the state. Postmodernists are particularly
interested in the complex power relations that exist in contemporary society where not just the
police but also private individuals and organisations conduct surveillance and have power.
Introduction

The crime rates in the world we live in today are constantly increasing. The number of murders,
abductions, rapes, terrorist attacks, and child abuse cases has increased. According to the
World Population Review of 2022, the overall crime rate in India is 44.43. In such a situation,
the legislation and penalties to deter and prevent crime must be put into effect immediately.
Punishment, which is one of the main pillars of contemporary civilisation, is the use of coercion
to uphold the law of the land. The state must punish offenders in order to maintain law and
order in society. There was no specific law or order that governed these crimes in the past, and
the severity of the punishment was entirely up to the king of the state. Over time, modern
theories of punishment emerged, and the state was given voluntary control over our rights and
the power to maintain law and order. The punishments range from fines and imprisonment to
death and life imprisonment. ‘Capital punishment’, also known as the ‘death penalty’, is the
harshest or most severe punishment of the present time.

The purpose of the death penalty is to deter people from doing something by instilling fear in
them about the consequences. This punishment applies to heinous and traumatising offences
to society as a whole, such as murder, rape, rape with murder, etc. The death penalty is used
when a crime is so serious that it has the potential to terrorise society as a whole, but not all of
the crimes mentioned above necessarily warrant the death penalty. The death penalty is only
applied to crimes that fall under the ‘rarest of rare doctrine.’

What is capital punishment

The term ‘capital’ is derived from the Latin word ‘capitalis’, which means concerning the head.
Thus, to be subjected to capital punishment means to lose one’s head.

Capital punishment, also known as the death penalty, is the execution of a criminal who has
been sentenced to death by a court of law for a serious felony. It is known as the most severe
form of punishment. It serves as punishment for the most heinous, grievous, and abhorrent
crimes against humanity. Even though the definition and scope of such crimes vary by nation,
state, and age, the death penalty has always been the result of such crimes.

According to Encyclopedia Britannica, the death penalty is the execution of a person who has
been given a death sentence after being found guilty of a crime by a court.

History of the death penalty in India

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

Death penalty under the Hindu law

Since the dawn of humanity, punishment has been an integral part of society. The death
penalty was present, along with exile, as two straightforward methods of eradicating society’s
antisocial elements, which were society’s best examples of punishment and dissuasion. Death
penalty cases are as old as the Hindu community. The death penalty is mentioned in the old
scriptures and books. The death penalty was not viewed as barbaric in the Hindu legal system,
and it was replaced with as much torture as possible to have a draconian impact on society.
There have been discoveries of fragments of the death penalty dating back to the fourth
century.

The necessity of the death penalty has been beautifully demonstrated by Kalidas. Historical and
mythological epics like the Ramayana and Mahabharata have also asserted the need for the
death penalty by stating that the king’s highest priority is to keep society safe from threats of all
kinds, which can be done by putting the wrongdoer to death. In addition, both Katyayana and
Brahaspati supported the death penalty.

Even during the time of the Buddha, when Ahimsa was the code of conduct, Ashoka did not
think that the death penalty was unjust. The fundamental tenets of the Dand Niti in India were
deterrence and mental health. The notions of social security and non-correctional philosophy
are undeniably prevalent in the Hindu criminal justice system. Manu has made excellent notes
of both the objective and subjective conditions. Manu Smriti, a famous work of Manu, portrays
the crime and the perpetrator’s weakness. Kautilya also discussed the death penalty in his
writings because, in his view, it is an essential tool for ensuring public safety.

Death penalty under Muslim law

Islam is governed by Sharia law, which was developed from the Qur’an, the Sunnah (Hadith),
the Ijma’, ‘Urf, the Masalih al-Mursala, and the Qiyas. In verse 2:30 of the Qur’an, it is stated,
“Your Lord said to the angels, I am appointing a vicegerent on earth.” The text also said, “Your
Lord said to the angels, I am about to create a human being out of clay; when I have fashioned
him and breathed of My spirit into him, kneel before him in prostration“. Thus, the Qur’an
denies the authority to take human life. According to Islamic philosophies, Ijad, the act of giving
life, and I’dam, the act of taking it away, are entirely divine entitlements.

In order to stop further heinous crimes from occurring in society, as required by Sharia Law, the
Qur’an permits the taking of life by authorities other than Allah through the due process of law
and justice.

Below are the crimes mentioned according to Sharia law.

1. Had crimes: The crimes that affected the community were referred to as ‘Had’ or
‘Huhud’, which refers to the punishment set forth by Allah himself. This group of crimes
includes murder, theft, consumption of alcohol, bloodshed, apostasy, and rebellion.
These crimes will be harshly persecuted, and neither the judge nor the victim has the
power to commute the sentence or enforce the punishment.
 2. Tazir crimes: The second category of such offences are those for which a tazeer or a
criminal offence has been committed. In contrast to the first group of offences, the
courts have the authority to decide whether to file charges against these categories of
offences. This group of crimes includes attempted adultery, false testimony and
obscenity.
3. Qisas crimes: The third type of social crime is Qisas (retaliatory) and Diyut (blood
money). The crimes protected by Qisas included intentional or felonious murder,
attempted intentional murder or accidental murder, and intentional or unintentional
injury. This crime is punishable by Qisas or Diyut, and in such cases, the victim or his
legal guardian or heir may forgive or reduce the penalty amount.

Each of these three categories of crime has a clearly defined punishment that differs in the
gravity of the offence and the punishment.

Death penalty under the Mughal empire

India’s mediaeval history was dominated by the mighty Mughal Empire. The Quranic laws were
primarily followed in their administration. There was no constant application of the law in
different parts of the world, and when disputes arose, the judges primarily considered Quranic
principles while also having the authority to impose arbitrary punishments.

Akbar had very lenient views; he believed that the death penalty should only be imposed after
thorough consideration and should only be applied to serious sedition offences. He also
believed that no death should be followed by cruel treatment, such as mutilation or other
cruelties. The laws of Jahangir and Aurangzeb were similar.

The execution of the death penalty involved brutal and agonising techniques, such as tossing
the prisoner in the hot sun while they were covered in freshly butchered, fluffed thin to shrink
rawhide and eventually collapse in misery and pain, or nailing the prisoners in the walls
alongside other bodies. The mandatory execution of criminals has surpassed these strategies
under the modern British criminal justice and administration scheme.

Death penalty in pre and post-independence era

The issue of the death penalty was not discussed in the legislative assembly of British India until
1931, when Shri Gaya Prasad Singh, a member from Bihar, attempted to introduce a bill to
abolish the death penalty for crimes under the Indian Penal Code. However, the motion was
defeated after the then-Home Minister responded to it. Before independence, then-Home
Minister Sir John Thorne made clear the government’s position on the death penalty in British
India twice during Legislative Assembly debates. “The Government does not believe that it is
prudent to repeal the death penalty for any crime for which it is currently authorised.”
Following its independence, the Republic of India adopted various colonial-era laws, including
the Indian Penal Code, 1860, and the Code of Criminal Procedure, 1898. The IPC imposed six
punishments, including the death penalty.

Crimes punishable by the death penalty

The foundation of Indian criminal law is a combination of reformist and dissuasive theories of
punishment. Penalties must be applied to deter offenders, but the offender must also be given
the opportunity to reform. When the death penalty is imposed, the courts must provide
detailed justification for their decision. Several legislative acts include the death penalty as a
punishment, which include:

The Indian Penal Code, 1860

The Indian Penal Code contains several crimes that include the death penalty. They are
discussed as follows:

1. One of the crimes that have been connected to the death penalty is waging war against
India or attempting to do so. Waging war against a country is a crime that is specifically
defined in Section 121 of the IPC. Anyone who attempts to wage war against India or is
successful in waging war may be sentenced to death.
2. The death penalty has also been associated with the abatement of mutiny. Abatement
of armed rebellion by an officer or member of the army, navy, or air force is specified in
Section 132 of the I.P.C and accordingly, anyone who abets in the commission of a
mutiny by an officer, soldier, sailor, or pilot in the army, navy, or air force of the
Government of India, so that mutiny will be committed as a result of that complicity, can
be punished by death.
3. Section 194 of the IPC has been added to the list of crimes punishable by death.
According to Section 194, fabricating evidence is punishable by the death penalty if it is
done to obtain a capital conviction for a crime. A person who commits such a crime can
face the death penalty.
4. Section 302 of the IPC imposes the death penalty for a person who commits murder.
5. Assisting or supporting a minor’s suicide has been associated with the death penalty.
Section 305 of the IPC deals with punishment for assisting or supporting a person under
the age of 18 or an intellectually disabled person in committing suicide. As a result,
anyone who commits this crime can face the death penalty.
6. Kidnapping for ransom or other purposes is a serious offence punishable by death.
Kidnapping a person with the intent to cause them harm or death is specified under
Section 364A of IPC. Any person who commits this crime can face the death penalty.
7. The following offences were added to the IPC by the Criminal Law (Amendment) Act of
2013 for which a court may impose the death penalty:

 Section 376A specifies the death penalty for rape that results in death or a permanent
vegetative state of the victim.
  Under Section 376E, repeat rape offenders may face the death penalty.

8. Section 396 also provides for the death penalty in cases of dacoity with murder.

The Commission of Sati (Prevention) Act, 1987

Any person involved in the commission of Sati directly or indirectly is subject to the death
penalty under The Commission of Sati (Prevention) Act, 1987.

Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985

Based on previous convictions, Section 31A of the NDPS Act has introduced the death penalty
for providing financial support or taking part in the production or sale of narcotics or
psychoactive substances in a predetermined amount (e.g., opium 10 kg, cocaine 500 grammes).

The Scheduled Castes And Scheduled Tribes (Prevention of Atrocities) Act, 1989

Forging evidence that leads to the conviction and execution of an innocent member of a
scheduled caste or tribe is punishable by death under the Act.

Army Act, 1950; Air Force Act, 1950 and Navy Act, 1957

Various offences committed by members of the military forces under military laws like the
Army Act, 1950; Air Force Act, 1950, and Navy Act, 1957, may also be punishable by death.

Category of offenders exempted from capital punishment

Minors
According to Indian laws, a person who committed a crime while still a minor, that is, before the
age of 18, cannot be executed. The lawmakers decided to include minors in the group of
offenders exempted from the death penalty because they thought that anyone who hasn’t
reached adulthood has room for improvement and might be able to learn from his mistakes by
being given the right environment and education. In addition, our laws provide a separate law
known as the Juvenile Justice Act (2015), that is only implemented in situations involving
minors. This is beneficial because it gives criminals a chance to improve.

Pregnant woman

Pregnant women were added to the list of criminals who are excluded from the death penalty.
According to Section 416 of the CrPC, if the high court finds that a woman who has been
awarded the death sentence is pregnant then such sentence can be postponed or commuted to
life imprisonment. The reasoning behind this is that hanging a pregnant woman kills both the
pregnant woman and the child in her womb. The unborn child in the woman’s womb has not
committed any wrongdoing and does not deserve to die for what the woman did. Pregnant
women may thus fall under the category of criminals who are excluded from the death penalty.

Intellectually disabled

According to the law, anyone who is intellectually disabled or challenged may fall under the
category of offenders who are exempted from the death penalty. If a person committing a
serious crime is unable to comprehend the nature and consequences of their actions, this is
sometimes referred to as having an intellectual disability. Because of their intellectual disability,
someone with a criminal record might not be aware of the specifics of their crime.
Consequently, the intellectually disabled were added to the list of criminals who were
exempted from the death penalty by lawmakers.

Procedure after the imposition of the death penalty

Confirmation by the high court

The session’s court shall present the case proceeds to the high court of the relevant state for
confirmation of the sentence after the sentence is imposed, in accordance with Section 366 of
the CrPC. The sentence-passing court is required to transfer the convicted person to jail custody
with a warrant until the High Court confirms the sentence.

Enquiry and additional evidence

According to Section 367 of the CrPC, the high court may order a further investigation of the
incident or the collection of additional evidence at any point relevant to the convicted person’s
guilt or innocence.

High court’s power to approve sentences or annul convictions

According to Section 368 of CrPC, the high court has the power to affirm a conviction, impose
any other sentence the court deems appropriate, or amend the charges and order a new trial.
The court cannot confirm the sentence until the time allotted for filing an appeal has expired.

Confirmation of the new sentence

According to Section 369 of the CrPC, any order or sentence that is submitted to the High Court
for confirmation, whether it is a new sentence or one that has already been passed by the High
Court, must be approved and signed by at least two judges.

Delivery of a copy of the order to the court of session

According to Section 371 of the CrPC, the confirmation of the sentence by the court or any
other order passed by the Honourable High Court must be sent to the Court of Session without
delay, with the High Court’s seal and attested with the official signature of the High Court
Official.

Clemency powers

For the death sentence imposed by the session court to become final, the sentence must be
confirmed by the high court. If the conviction is upheld, the condemned person may file an
appeal with the Supreme Court. If the appeal petition is denied by the top court, the
condemned person may then submit a mercy petition to the President of India and the
Governor of the state.

The President and Governors have the authority, under Articles 72 and 161 of the Constitution,
“to grant pardons, reprieves, respites, or remissions of punishment, or to suspend, remit, or
commute the sentence of any person convicted of any offence.” These are not personal powers
of the holders of the office, rather, they are to be exercised in accordance with Articles 74 and
163, respectively, with the assistance and advice of the Council of Ministers.

Despite the fact that clemency powers may be utilised for a variety of causes and in a variety of
contexts, they also act as the last line of defence against the possibility of judicial error or a
miscarriage of justice. This puts a heavy burden on those who exercise this power and
necessitates careful consideration, close examination of court documents, and thorough
investigations when deciding whether to grant clemency, particularly when the petition comes
from a prisoner who is about to be put to death and has a confirmed death sentence from the
court.

The “Procedure Regarding Petitions for Mercy in Death Sentence Cases” has been developed by
the Ministry of Home Affairs, Government of India, to provide guidance to State Governments
and prison authorities regarding the petitions for mercy from prisoners on death row. The
Supreme Court summarised these rules in Shatrughan Chauhan v. Union of India (2014),
recording that the Home Ministry considers the following factors while deciding mercy
petitions:

1. Age, gender, mental incapacity of the accused, or the circumstances of the case, such as
provocation or a similar defence.
2. Cases where the appellate court reached a conviction decision despite expressing doubt
about the genuineness of the evidence;
3. Circumstances where allegedly new evidence is available, primarily to decide whether a
new investigation is necessary;
4. The high court enhanced the sentence or reversed the verdict on appeal;
5. If there are any differences of opinion among the high court judges that would require a
referral to a larger bench;
6. Examining the evidence to determine guilt in a gang murder case;
7. Delays in investigation and trial, etc.

Execution procedure in India

Hanging

Section 354(5) of the CrPC specifies that hanging is the method of execution in the civilian court
system and that it is the only method permitted in India for the execution of a civilian person.

Shooting

Another execution method used in India is shooting. A firing squad member may execute a
convict who has been given the death penalty. The only organisations capable of executing the
death penalty in this manner are the Army, Air Force, and Navy. According to the Army Act of
1950, the army court-martial system recognises both hanging and shooting as legitimate
methods of execution.

Constitutional validity of capital punishment

Article 21 of the Constitution, as we all know, guarantees the fundamental right to life and
personal liberty. While this article guarantees the right to life and personal liberty to every
person, is it absolute? The answer is no because, despite the fact that everyone has the right to
live with dignity, the state has the authority to take away or limit even this right for maintaining
law and order.

But as determined in the case Maneka Gandhi v. Union of India (1978), the procedure must be
a due procedure as it takes away a person’s sacred life and must be fair, reasonable, and devoid
of any bias. It implies that the state may restrict or revoke a person’s right to life by enacting
laws, provided that there is a fair and valid procedure. However, the death penalty is not a
punishment for all crimes; rather, it is only applied to the most heinous offences.
The issue of capital punishment has long been debated and discussed by our legislators.
Nonetheless, despite years of debate and disagreement, Indian legislators have yet to reach a
firm decision on whether the death penalty should be retained or abolished. The majority of
nations have different perspectives on crime and different methods for punishing offenders.
However, India, like many other nations, takes a reformative approach to punishment, meaning
they think that changing the criminal’s behaviour and attitude toward society is a better way to
deal with crime. India is one of the 78 nations that have retained the death penalty. Moreover,
‘rarest of the rare’ and ‘special reasons’ are two grounds for imposing the death penalty in
India.

The constitutionality of the death penalty has occasionally been challenged. In the case of
Jagmohan Singh v. State of Uttar Pradesh (1973), the death penalty was first challenged on the
grounds that it violated a person’s right to life under Article 21 of the Indian Constitution, an
important fundamental freedom. The five-judge bench of the Apex Court issued its ruling,
stating that the death penalty is constitutionally valid and does not violate any of the Articles of
the Constitution. It also found that the choice between the death penalty and life imprisonment
was made after taking into account all the pertinent facts and the nature of the crime as they
were presented during the trial.

In Rajendra Prasad v. State of Uttar Pradesh (1979), Justice Krishna Iyer asserted that the death
penalty was a clear violation of Articles 14, 19 and 21 provided by our Constitution. Two
requirements for imposing the death penalty on any offender were highlighted in this case.
First, the specific reason or circumstance for which the offender was given this punishment
must be recorded. Second, it can only be applied in extraordinary circumstances.

The “rarest of rare doctrine” was established by the landmark Bacchan Singh v. State of Punjab
(1980), decision, which also mandated the death penalty in certain circumstances. By a
majority of 4:1, the Supreme Court upheld the constitutionality of the death penalty in this
particular case, but it also established a rule requiring that it only be applied in the most
extreme instances. Even though it was determined that the death penalty is an exception and
life imprisonment is the rule, the Supreme Court’s decision did not define or restrict the use of
the phrase ‘rarest of rare.’

The constitutionality of the death penalty was once again challenged in Deena Dayal v. Union of
India (1983), on the grounds that hanging by a rope violates Article 21 because it is barbaric,
inhumane, and cruel. The Supreme Court determined that hanging is an appropriate and fair
method of execution within the constraints of Article 21 and is therefore constitutional.

In the case of Mithu v. State of Punjab (1983), it was determined that the death penalty under
Section 303 IPC is unconstitutional because it infringes on the safeguards enumerated in
Articles 14 and 21 of the Constitution. As a result, it was omitted from the Indian Penal Code. In
the later decisions of T. V. Vatheeswaran v. Tamil Nadu (1983), the Supreme Court was faced
with a conundrum regarding the execution of the death sentence and whether a significant
delay was a justifiable reason to commute the death sentence to life imprisonment.
Further, the three-Judge Bench in the case of Macchi Singh & Others v. State of Punjab (1983),
upheld Bachan Singh’s ruling and stated that the death penalty can only be awarded in the
rarest of rare cases when the community’s collective conscience is such that it will expect those
who hold the judicial authority to impose it. Under these circumstances, the following
prerequisites must be satisfied:

1. When the murder is committed in a manner that is particularly gruesome, revolting, or

morally dubious in order to elicit a strong and extreme sense of outrage from the
community.
2. In the incident of bride burning or dowry death.
3. When the crime is massively proportionate.
4. When a Scheduled Caste member is murdered, which sparks outrage in society.
5. When the murder victim is an innocent child, a vulnerable woman, or a person rendered
helpless due to advanced age or illness.

The Supreme Court further stated that the rarest of rare cases only serve as guidelines
imposing the provisions mentioned in Section 354(3) of the CrPC and entrench the policy that
life imprisonment is the rule and death punishment is an exception in the case of Santosh
Kumar Satishbhushan v. State of Maharashtra (2009).

In the well-known case of Ajmal Kasab, who was held guilty of 80 offences, including murder,
possessing explosives, and waging war on India. The Bombay High Court pronounced a death
sentence against him, asserting that it was the only appropriate punishment for the 166 deaths
caused by the Bombay attacks on November 26, 2011. The death penalty was also upheld by
the Supreme Court.

In the case of Mukesh and Anr. v. State (NCT of Delhi) (2017), the Supreme Court upheld the
death penalty for four prisoners, describing it as “the rarest of rares” and stating that the crime
committed was horrifying to humanity. Later, the inmates’ requests for reviews were denied by
the Supreme Court.

Law Commission reports on the death penalty

35th Report

In India, there has been much discussion regarding whether to retain the death penalty or
abolish it for a long time. For the first time in India, the Law Commission looked into the death
penalty and presented its 35th Report, which concluded that “As an experiment, the death
penalty may be abolished once so that it can be re-introduced again after completion of the
experiment, but that, after looking to certain possibilities on the issue, it is suggested that
capital punishment must be retained as it is in the country.” However, the Commission declared
in 2015 that they feel that the time has come for India to move towards the abolition of the
death penalty, which is discussed further in this section.
187th Report

The Law Commission of India again presented its 187th Report on the subject of the death
penalty in 2003. This Report covered incidental matters and the method of execution of death
sentences, but it did not address the crucial issue of the constitutionality of the death penalty.

In its consultation paper on “Mode of Execution of Death Sentence and Incidental Matters,” the
Law Commission of India compared and distinguished hanging, intravenous lethal injection, and
shooting as methods of carrying out death sentences. The Committee acknowledged that
asphyxia or strangulation, which results in a slow and agonising death for the condemned
person, is the primary cause of death from hanging in the majority of cases. In the Report, it
was recommended that lethal injections be added to the currently used method of hanging and
that these methods be reviewed regularly. The Report weighed the execution of death
sentences by hanging by rope against objective factors such as international standards, norms,
or the climate of international opinion, modern criminological theories, and developing
standards of human decency.

The Law Commission’s position that the method of execution should be certain, humane, quick,
and decent and that it must accord the prisoner dignity has been echoed by the Supreme Court.
It should be noted that this method of execution was challenged in court once again in 2020
and is pending before the Supreme Court. In order to make sure that these rules are followed,
prison manuals outline a specific process for executing death row inmates.

262nd Report

In August 2015, the Law Commission of India, headed by Justice A.P. Shah, released its 262nd
Report on the issue of the death penalty in India. It was suggested that the death penalty be
abolished for all crimes other than those connected to terrorism and acts of waging war. The
Report includes the following recommendations:

1. The Commission recommended that the government implement measures such as

police reforms, witness protection schemes, and victim compensation schemes as soon
as possible.
2. The march of our own jurisprudence, which removed the requirement that the death
penalty is strictly limited to rare cases by either the Supreme Court to specific reasons
for imposing a life sentence, to providing additional reasons again for the death penalty,
shows the direction we must go. The Commission also thought that given the broadened
and improved horizons of the right to life, now is the appropriate time for India to take
steps toward emancipation. It reaffirmed the requirements for fruitful interactions
between the State and the individual.
3. There has frequently been concern that abolishing the death penalty for crimes and acts
of war would jeopardise national security, even though there is no compelling legal
basis for prosecuting terrorism in relation to other offences. Despite the legislators’
 concerns, the commission decided there was no need to delay the first step in the
abolition of the death penalty for all crimes other than terrorism.
4. The Commission consequently recommended the abolition of the death penalty for all
crimes other than those related to terrorism and war crimes. The Commission also
sincerely hopes that progress towards complete abolition will be quick and irreversible.

Instances of past executions in India

The death penalty is executed at a very low rate in India. Mukesh Singh, Vinay Sharma, Pawan
Gupta, and Akshay Thakur were the four convicts who were hanged together on 20 March 2020
in the Nirbhaya gang rape and murder case. However, including them, there have only been 08
executions since 2000. There are many capital punishment verdicts issued, but they are
executed in very few cases. Between 2004 and 2015, approximately 1500 capital punishment
verdicts were issued, but only four convicts were hanged and are as follows.

Dhananjoy Chatterjee v. State of West Bengal (2004)

In this case, Dhananjoy Chatterjee, who was found guilty of both rape and murder, killed Hetal
Parekh, an 18-year-old student. He worked as a security guard for an apartment building. The
victim resided in the same apartment where Dhananjoy was employed as a security guard. The
victim was found dead in her home by her mother on the afternoon of March 5, 1990.
Dhananjoy was charged with raping and killing the girl in her apartment as he was not seen in
the area after the murder was discovered. On May 12, 1990, he was arrested by Kolkata police
on charges of rape, murder, and theft of a wristwatch.

Dhananjoy was found guilty of all charges and given a death sentence by the Alipore Sessions
Court in 1991. Both the Calcutta High Court and the Supreme Court upheld this judgement. He
submitted mercy petitions to both President A.P.J. Abdul Kalam and the Governor of West
Bengal, but both were denied. On his 39th birthday, August 14, 2004, Dhananjoy was executed
at 4:30 am in Kolkata’s Alipore Central Jail.

Mohammed Ajmal Amir Kasab v. State of Maharashtra (2012)

In the infamous 26/11 Mumbai attack, Kasab and nine other terrorists carried out a number of
well-planned bombing and shooting attacks throughout the city. The terrorist attack at CST
station, which was carried out by Ajmal Kasab and Ismail Khan, targeted major landmarks and
left up to 58 people dead and over 100 injured. At the time, Kasab, who was 21 years old, was
the only survivor of the group that carried out widespread devastation throughout Mumbai,
killing 166 people. He was taken into custody following a shootout with the police,
interrogated, and charged with 86 offences, including murder and waging war on India.

Although the prosecution claimed Kasab had confessed, Kasab’s attorneys argued that the
claim was false. In March 2009, a trial for him began. In May 2010, Kasab received the death
sentence from a special court. On May 7, trial judge ML Tahaliyani said, “He should be hanged
by the neck until he is dead,” adding that he had lost his right to “humanitarian treatment,”
despite Kasab’s attorney pleading for mercy and claiming that his client had been brainwashed
by a terrorist group (Lashkar-e-Taiba) and could be rehabilitated. Kasab appealed the decision,
but in February 2011, the Mumbai High Court rejected it. In July 2011, Kasab appealed the
death sentence to the Supreme Court.

Kasab claimed in the statement he gave to the Court that the prosecution had failed to
establish the charges against him beyond a reasonable doubt. He said, “He may be guilty of
killing people and committing a terrorist act, but I am not guilty of waging war against the
state“. The Supreme Court rejected his appeal and upheld the Trial Court’s decision to execute
him on August 29, 2012. The mercy petition he had submitted was denied by President Pranab
Mukherjee as well. Ajmal Kasab was put to death by hanging on November 21, 2012, in Pune’s
Yerwada Jail.

State v. Mohd. Afzal & Ors. (Afzal Guru’s case, 2013)

In this case, the facts started on December 13, 2001, when five armed individuals opened fire
on Parliament, killing many of the security guards who were on duty. The gun battle resulted in
the deaths of the five terrorists who attempted to enter Parliament while it was in session. The
terrorists killed nine people, including eight security guards and one gardener. There were 16
injured people, including 13 security personnel. On December 15, 2001, the special unit of the
Delhi Police arrested Afzal Guru from Srinagar, his cousin Shaukat Husain Guru, Shaukat’s wife
Afsan Guru, and S.A.R. Gilani, an Arabic lecturer at Delhi University, using information from car
and cellphone records.

The police filed an FIR on December 13 and all of the accused were tried on charges of waging
war, conspiring to commit murder, attempting to commit murder, and other related offences.
In addition to the initial charges, provisions of the Prevention of Terrorism Act (POTA) 2002
were later added.

The special court executed Guru, Shaukat, and Gilani on December 18, 2002. Shaukat’s wife
Afsan received 5-year imprisonment after being found guilty of concealing the plot. Following
an appeal, the Delhi High Court upheld Guru and Shaukat’s convictions in 2003. On October 29,
2003, the High Court found SAR Geelani and Afsan Guru, Shaukat Husain’s husband, not
accountable for the allegations made against them. On August 24, 2005, the Supreme Court
upheld Afzal Guru’s death sentence while commuting his cousin Shaukat’s to ten years in
prison. Although Guru filed a review petition with the Supreme Court, the Court ultimately
decided to reject it in September 2005.

In October 2006, Guru’s wife submitted an appeal for mercy to the then-President of India,
A.P.J. Abdul Kalam. On February 3, 2013, the President rejected Afzal Guru’s plea for mercy.
Afzal Guru was hanged in Delhi’s Tihar Jail on February 9, 2013.

Yakub Memon v. State of Maharashtra (2013)

In this case, Yakub Memon, the brother of Tiger Memon, was a prime suspect in the bombings.
Yakub Memon, a chartered accountant by profession, was charged with taking part in the
Bombay blast case, which was organised by Dawood Ibrahim and Tiger Memon. The explosions
caused 257 casualties. Yakub Memon was arrested on August 5, 1994, at the New Delhi Railway
Station.

He was found guilty of murder, assisting terrorist activity, and criminal conspiracy to commit
terrorist acts. Additionally, he was charged with illegally transporting and possessing firearms
and ammunition, and the Trial Court sentenced him to death under the Terrorist and Disruptive
Activities (Prevention) Act (TADA), 1987.

The death sentence for Memon was upheld by the Supreme Court despite Memon’s request for
a revision. The Maharashtra government executed Yakub Memon on July 30, 2015, the day of
his death sentence. On May 22, 2015, Memon submitted a curative petition to the Supreme
Court. The same was rejected on July 21, 2015. Additionally, he requested a stay of execution
through a mercy petition, which the Governor of Maharashtra rejected. On July 30, 2015, Yakub
Memon was executed at Nagpur Central Jail.

Inconsistent and subjective sentencing policy

The courts have repeatedly discussed the subjectivity and inconsistency that permeate the
sentencing policy. The Supreme Court expressed its concern regarding the inconsistent and
flawed use of discretion, the subjectivity involved in the sentencing policy, and the
inappropriate application of the rarest of rare doctrines in the case of Sangeet and Anr. v. State
of Haryana (2012).

The Court once again noted the difficulty in applying the doctrine and emphasised its cause as
the lack of data available to the court, which was required for the actual application of the
doctrine, in Shanker Kishanrao Khade v. State of Maharashtra (2012). In this case, three tests,
the crime test, the criminal test, and the rarest of the rare tests were laid out (with a society-
centric and not judge-centric approach).

The mental condition of the defendant has been taken into account by the courts while
determining whether to impose the death penalty and even to the point of being one of the
factors that are highlighted when the death sentence is commuted. In one of the most well-
known cases, Navneet Kaur v. NCT of Delhi (2014), the court commuted the convict’s death
sentence due to the inordinate delay in carrying out the execution and the mental anguish he
had to endure.

In the case of Rishi Malhotra v. Union of India (2017), the legitimacy of hanging as a method of
execution was once more up for discussion, and it was deemed barbaric due to the degrading
nature of human life and the mental anguish it would cause. It was during this case that the
idea of switching to more advanced execution modes was discussed.
In Channulal Verma v. State of Chhattisgarh (2018), the Court expressed the opinion that the
constitutionality of the death penalty and its potential for reformation should be examined.

The Supreme Court specifically acknowledged and asserted post-conviction mental illness as
one of the mitigating factors in Accused X v. State of Maharashtra (2019) while considering the
commutation of the sentence.

Considering the past and current trends, it is clear that the sentencing guidelines have been
plagued by individualistic subjectivity, a lack of requisite materials, improper consideration of
elements and scaling of mitigating factors against other circumstances, as well as challenges to
the constitutionality and propriety of the death sentence as a punishment option.

Recent cases

Manoj v. State of Madhya Pradesh (2022)

The ruling and the parameters laid in Bachan Singh’s case were re-asserted by the Supreme
Court in the recent leading case Manoj v. State of Madya Pradesh (2022). The Court ruled that
the death penalty only applies when the alternative opinion is unquestionably forfeited and
that the Bachan Singh principles must be applied to each specific case in light of its
circumstances. The Court in this case listed various guidelines for a better assessment of the
parameters and scope of rehabilitation.

1. Mitigating factors in the case must be considered at the trial stage.

2. The trial court must obtain information for it from the accused as well as the state.
3. Additional data, such as age, family background, past and present circumstances,
education, criminal histories, income, type of employment, etc., should be gathered by
the state within a specific time frame.
4. Other pertinent factors, such as illnesses or unstable behaviour, should be taken into
account according to the circumstances of each case. This information must be provided
to the court at the time of sentencing, and the accused should have the opportunity to
present a defence and any mitigating circumstances.
5. The behaviour inside the jail, the work that is done there, the involvement and other
pertinent reports from the authorities and required experts.

Following the decision laid, courts must specifically take into account the circumstances of
offenders and see if there is something actually unusual and uncommon about the crime in
question which would render even life imprisonment inadequate as a punishment. Even after
giving the maximum weight to the available mitigating factors in the accused’s favour, the
courts must consider the overall facts and their cumulative impact on the application and
determine that there is no other option but to impose a death sentence. Even though it would
be one of the rarest of rare cases to support the death penalty, courts should screen these
cases to determine if any aggravating factors are present to their fullest extent and no
mitigating factors at all.
Manoj Pratap Singh v. State of Rajasthan (2022)

In this case, the death penalty imposed on a 37-year-old man for the rape and killing of an
autistic girl aged seven and a half was upheld by the Supreme Court. The crime was committed
in Rajasthan in 2013 when Manoj Pratap Singh, the accused, was about 28 years old. A three-
judge bench stated that the crime had been committed with extreme depravity, especially in
light of the victim’s vulnerability and the manner in which it was committed.

The convict kidnapped the victim on a stolen motorcycle, taking advantage of the trust gained
through the offer of confectionary items. She was then sexually assaulted and had her head
smashed, suffering multiple injuries, including a fracture of the frontal bone. The victim also
had severe injuries on the private parts.

The accused argued that the crime was committed when he was only 28 years old. He also has a
family, including a wife, a young daughter, and an elderly father. The Supreme Court opined
that there appears to be no chance of his reformation and rehabilitation because these
mitigating factors are weighed against a number of other factors pertaining to his antecedents.

The Court noted that the accused had a criminal history and had been involved in at least 4
cases involving theft, the destruction of public property, and attempted murder. Further, a
stolen motorcycle was used in the commission of the current crime. The Court also noted that
the convict had already been found guilty of murdering another inmate and had received a
seven-day sentence for fighting with another prisoner.

The Court even went so far as to say that the convict was a “danger to the maintenance of
order in the society” after taking all of these factors into account. According to the Court, the
alternative of giving the convict a life sentence for the rest of their natural life without
commutation was also impractical in light of the incorrigible conduct of the accused. The Bench
stated that because it was inevitable in this particular case, it had “no choice but to confirm the
death sentence awarded to the appellant.”

Mohd. Arif @ Ashfaq v. State (NCT Of Delhi) (2022)

In this case, the facts started when on December 22, 2000, some intruders opened fire
indiscriminately, killing three people, including two army Jawans from the 7th Rajputana Rifles.
In this case, Mohd. Arif, who is undoubtedly a citizen of Pakistan, was taken into custody on
December 25, 2000. He was found guilty by a Trial Court on October 24, 2005, and on October
31, 2005, the Court sentenced him to death. His death sentence was upheld by the Delhi High
Court in an Order dated September 13, 2007.

The Supreme Court rejected his appeal challenging the conviction on August 10, 2011, and on
August 28, 2011, the Court also rejected his petition for a review. But in 2016, the Supreme
Court decided to hear his review petition again in light of the ruling dictating that review
petitions filed in death penalty cases had to be heard in public, and the Supreme Court issued a
stay of execution for Arif. The Center argued that the imposition of the death penalty is the only
appropriate remedy for situations involving terrorist acts that jeopardise the unity, integrity,
and sovereignty of India.

In November 2022, the Supreme Court upheld the execution of Lashkar-e-Taiba militant
Mohammed Arif for the 2000 Red Fort Attack case, which resulted in the deaths of three
people, including two army officers. The Court denied his review petition, which questioned his
conviction and sentence. The Bench noted that terrorist acts are regarded as the most
aggravating situations when they pose a threat to the unity, integrity, and sovereignty of India.
The Court further stated that this factor completely outweighs all other factors that could
possibly be taken into account as mitigating circumstances based on the evidence.

Why the death penalty still prevails in India

In order to improve the environment for the general public, it is necessary to instil the fear of
death in the minds of criminals given that it is obvious that the reformative theory of
punishment has failed miserably in India and that the rate of wrongdoing has increased. The
United General Assembly’s resolution to abolish or outlaw the death penalty was also opposed
by India because it went against the country’s legal framework. Even though it is considered a
legal punishment in India, the death penalty is only ever applied in cases of terrorism,
intentional suicide of a child, murder, etc.

Abolishing the death penalty would not make sense in the current context, where India has
seen an increase in rape and murder cases, where strict measures should be taken against the
accused. People would be less likely to commit crimes if the death penalty were applied more
frequently when the accused is fully found guilty because it is seen as a more terrifying
punishment than life imprisonment.

Conclusion

The death penalty, also known as capital punishment, has been used in India since time
immemorial. Since the days of the monarchy, the death penalty has been the most common
punishment in India for crimes and offences that essentially violate the law. There was no
concept of grievous or serious crimes that would warrant the death penalty. It is in the present
era that, the concepts like ‘rarest of rare cases,’ ‘special reasons,’ ‘grievous crimes,’ ‘serious
offences,’ etc. are taken into consideration before imposing the death penalty.

The death penalty is a contentious issue; the global opposition to it has grown significantly, and
many nations have abolished it as a means of punishment. Article 6 of the International
Covenant on Civil and Political Rights lays out crucial protections that signatories who still
practise the death penalty must uphold; but nowhere does it abolish its use. Despite the uproar
surrounding Nirbhaya’s case, the International Commission of Jurists and Amnesty International
India both condemned the executions. Apart from India, both Australian and American law
imposes the death penalty for crimes involving murder and rape.
The Law Commission also recommended the abolition of the death penalty in its 262nd Report,
with the exception of acts of terrorism. Thereby, not putting a blanket ban on it. At this point, it
is crucial to remember the instances in India where the accused received the death penalty and
were executed. Studies of cases from the past 20 years reveal a total of 5 executions, of which 3
involved terrorist acts and the remaining involved rape cases. All five of these cases fit the
description of the rarest of rare cases, and they shook both the public and judicial consciences.
Although terrorist attacks and rape cases are fundamentally distinct from one another, these
five cases have a common thread running between brutality, gruesomeness, and inhuman act
against the victim(s) that a person in the normal course of things could not even possibly
imagine.

The use of capital punishment is recognised as an effective deterrent in society as well as a

form of retributive and preventive punishment. Many contend that it violates fundamental
rights and is no longer an effective deterrent. It can be argued in favour of the death penalty in
the Indian context that some crimes are so monstrous and horrifying in nature that the societal
conscience is so deeply wounded that no punishment less than the death penalty can be
considered fair or justice. As Justice ML Tahaliyani observed in the case of Ajmal Kasab, “he lost
his right to humanitarian treatment,” similarly, such offenders lose their right to humanitarian
treatment for the commission of barbarous offences. In India, death warrants are only ever
issued in the rarest of rare cases and are always the exception. Therefore, abolishing the death
penalty entirely would put the nation at greater risk because the State would be unable to take
the necessary action when the rarest of rare cases arise.
White Collar Crimes in India

White-collar crimes are committed by individuals who hold an important position in a company
and enjoy high social status during the course of their occupation or professional time period.
These are non-violent in nature yet pose a great threat to the economy of a nation. Such crimes
are quite prevalent in third world countries as there is misuse of power at higher authorities
that limit the regulation on such illegal activities.

Economists in the past as well as the present have stated that white-collar crimes do more
harm to the society in comparison to other crimes as these tend to affect the general
population by toying with their hard-earned money. India is a developing nation aspiring to
stand at the centre stage of the world along with developed nations like US and China.

To achieve this goal, it has allowed interested parties across the world to invest in its businesses
making the consumers more vulnerable to crimes like these. India looked at an accelerated 80%
growth in white-collar crimes in 2019.

What are White-Collar Crimes?

Criminologist Edward Sutherland coined the term white-collar crimes in 1939. White-collar
crimes are those which, principally, violate the implied trust. This can, majorly, be done by two
methods, the first being duplication in order to manipulate power and secondly, asset values
being wrongfully represented. Both of these methods incorporate breaking the trust of the
victim for personal gain causing the victim to bear with physical, as well as, psychological losses.

Why is there an increase in White Collar Crimes in India?

India has a very evident economical divide between its social classes, rich and poor. There is a
huge chunk of population that is uneducated and is below poverty line that causes lack of
awareness and being more susceptible to white-collar crimes. In addition to this, lack of proper
implementation of laws and personal factors like greed and competition among peers are some
factors involved.

Some of the many reasons augmenting the growth of white-collar crimes in India are
explained below:

1. Lack of Strict Laws: Though India already has laws against financial fraudulence, these
need to be made more stringent to penalize offenders. Perpetrators tend to exploit
loopholes in the existing laws and getaway successfully. Furthermore, with the
government promoting Digital India, internet has become the most popular form of
monetary transactions presently, giving a boom to cybercrimes which are a form of
white-collar crimes. India still does not have ironclad cyber security laws
 2. Greed: It is believed that there is greed inbuilt in the nature of man. It states true in the
cases of white-collar crimes as these are mostly committed by people already part of
high society circles with so much wealth that already cannot be accounted for. The
greed in them makes them commit crimes and steal money from the pockets of honest
tax payers.

3. Lack of Awareness among General Population: People who fall prey to white-collar
crimes often fail to make sense of the nature of the crime that has been committed and
are unaware of the procedures to be followed in order to register a complaint against
such offence. Sometimes the offenders sit at very powerful positions at out of reach
institutions forcing victims to choose silence over standing against them. Then there�s
existence of double-dip scams in which a victim�s information might be stored and
passed on to other scammers.

4. Modern Technology: Advancing technology has helped us ease our day-to-day chores
and also the ease to commit crimes. White-caller crimes has reached a wider audience
with the help of internet and technology. Criminals are able to explore new ways of
committing illegal activities. Bank frauds are done with a single click on some link. This
posing a great threat to people's privacy and financial assets.

5. Biased Law: As white-collar criminals are mostly those who hold certain authority in
institutions, they tend to escape their punishment through strong contacts with
government officials and politicians that influence the country's legal system. Corruption
is also one evil that cripples the system and judgements are made in favour of the
powerful even if they are the offenders. Bribes are used at all levels of investigation and
the offenders go free. The victims tend not to report offences for that matter as they
lose faith in law and order.

Types of White-Collar Crimes:

White-collar crimes have many forms, they come in different categories, with different
characteristics and impacts.

Some of these are listed below:

1. Fraud: By definition a fraud is an intentional deceptive action taken by the perpetrator

for their own unjust gain. One of the most common type of frauds in India are bank
frauds which include getting loans approved falsely, stealing cheques and by imitation of
financial institutions over calls or internet. Activities like pyramid or Ponzi schemes,
identity theft also fall in the category of frauds.
 2. Embezzlement: The act of embezzlement is practiced under the shield of trust. When a
person starts using the money or property that has been entrusted upon him in a
manner that is illegal and not designated to, it becomes a criminal breach of trust
according to section 405 of IPC.

3. Money Laundering: When a person is successful in disguising illegally obtained financial

assets as funds obtained from legal sources, a money laundering crime has been
committed. Section 3 of the Money Laundering Act of 2002 defines it.

4. Insider Trading: Taking advantage of privileged access to inside information of a

company that is unavailable in the public domain by buying or selling stocks or
manipulating other financial instruments to make profit is called Insider trading and it is
illegal.

5. Tax Evasion: Evasion of tax is a punishable offence under the income Tax Act of 1961. It
could be practiced by an individual or a whole institution. It is the act of escaping or
avoiding paying taxes by illegally forging state of affairs so that the amount of tax to be
paid can be lessened. Tax evasion is basically robbing a nation of the money that is used
by the government to help pay for the country's expenses and growth. It is penalised in
situations of failure in filing of income tax returns, providing false information,
concealing of owned assets.

6. Counterfeiting Currency: Section 28 of IPC defines counterfeiting as a criminal act. It is

the practice of imitating something that is authentic like coins and currency or even
items like clothes, bags, shoes among others.

7. Cybercrimes: With India moving towards digitisation in every sector, cybercrimes have
become very common. Any crime that uses computer as a means, coupled with internet
comes under the category of cybercrimes. These include child pornography, cyber
stalking and harassment, and cyber terrorism.

Effects of White-Collar Crimes:

White-collar crimes can impact its victims in various ways. They can cause heavy losses for
companies forcing them to increase product prices, laying off employees or deducting salaries
in order to recover. This in turn affects the end users and the nation's economy. With rising
cases of white-collar crimes, consumers have started having trust issues on the authenticity and
safety of the products or services they tend to use which has a negative impact on market
demand.

White-collar crimes can affect the victims mentally and psychologically, making them feel
helpless, causing suicidal tendencies as many of them incur unbearable losses. These crimes
shake the very roots of the economy on which a country is surviving.

Prevention and Punishment:

Prevention of white-collar crimes can be a great challenge in front of the government and
society.

However, certain measures can be adopted to prevent them, such as:

 Government campaigns for increased awareness among general public, the more
informed they are, the lesser they will fall into fraudulent scams and traps.
 Proper up to date professional training of government officials to educate them on how
to deal with offences like these.
 Investigating agencies should make use of strong policies to regulate illegal flow of
money and profits made by institutions and businesses.

Punishing offenders for white-collar crimes is a difficult task as, in most cases, the nature of the
crime does not allow any evidence or eye witness to be produced. A crime that is undetectable
cannot be prosecuted. However, there has been significant progress made by our government
and law enforcement agencies in punishing offenders of white-collar crimes. Various
legislations have been passed to curb these crimes such as The Indian Penal code (1860), SEBI
Act (1992), Information Technology Act (2005), Central Vigilance Commission Act (2003),
Income Tax Act (1961) and various others.

Conclusion:
White-collar crimes have become a significant problem in India, and they have a detrimental
impact on the country's economy and development. The government and regulatory bodies
need to take proactive measures to prevent these crimes and prosecute those responsible for
committing them.

Strengthening the legal system, improving the regulatory framework, increasing awareness,
and implementing whistle-blower protection are some of the steps that can be taken to
prevent white-collar crimes in India and create a more transparent and accountable business
environment. It is important to note that preventing white-collar crimes requires a coordinated
effort from all stakeholders, including the government, regulatory bodies, businesses, and the
public.

Recent white collar crime cases in India:

1. Abhay Singh Chautala v. C.B.I.

There were two appellants in the present case against whom a charge sheet was filed
for committing an offence under Section 13(1)(e) and 13(2) of the Prevention of
Corruption Act, 1988 read with Section 109 of the Indian Penal Code, 1860 in separate
 trials. It was alleged that both the accused had accumulated disproportionate wealth as
per their income when they were they members of the Legislative Assembly.

When the Central Bureau of Investigation (CBI) initiated its investigation, it was found that the
father of the appellant had acquired huge properties and same as the case with the appellants.
The High Court held that the appellant had provided a totally different office(s) of the accused
than they were actually holding at that time. Thus, the sanction under Section 19 of the
Prevention of Corruption Act, 1988 was held to be without any merit.

The Increasing Accountability of Auditors for Fraud

Introduction

Statutory auditors play a significant role in ensuring the accuracy and reliability of financial
information provided by companies. The work done by auditors is essential for investors,
stakeholders, and the general public to make informed decisions. Legislators, courts, and
regulators across the world have repeatedly discussed and assessed the extent of responsibility
and accountability of statutory auditors. The discussion has further gained centre stage on
multiple occasions on the back of various corporate scams and large-scale financial
misgovernance issues in the past 10–15 years. The global landscape demanded a change
towards a more stringent liability regime for statutory auditors, especially in cases of corporate
fraud.

In India, the Satyam scandal served as a catalyst for important changes in the accountability of
auditors and the way they are regulated. Traditionally, statutory auditors in India were self-
regulated only through the Institute of Chartered Accountants of India (ICAI), governed by the
Chartered Accountants Act, 1949 (“CA Act”). The need to introduce an independent body for
regulating statutory auditors was discussed by a parliamentary committee as far back as 2009.
A subsequent parliamentary committee recommended giving the independent regulator quasi-
judicial powers to ensure better accountability through independent oversight. The Supreme
Court of India in S Sukumar v Secretary, ICAI and Ors, (2018) 14 SCC 360 directed the
government to consider implementing appropriate legislation for oversight of statutory
auditors in line with the Sarbanes-Oxley Act, 2002 and Dodd Frank Wall Street Reform and
Consumer Protection Act, 2010 in the US. As a result, the Indian Parliament established an
autonomous regulatory body, the National Financial Reporting Authority (NFRA), in October
2018. This marked a significant step toward ensuring independent and effective oversight of
statutory auditors in India, fostering transparency and accountability in the corporate sector.

The Companies Act, 2013 (the “Act”) also introduced several provisions aimed at enhancing
auditor accountability in order to improve the detection of corporate fraud and promote
transparency within the corporate sector. For instance, statutory auditors are mandated to
report fraud if they suspect or have reasonable grounds to believe that a fraudulent act has
occurred within the company under Section 143(12) of the Act. Sub-section (5) of Section 140
of the Act introduced a significant deterrent on statutory auditors to reinforce the commitment
to support the highest standards of corporate governance and financial probity. Section 140(5)
emphasises the importance of statutory auditors acting as watchdogs to safeguard against
financial misconduct and corporate fraud by adding an automatic disqualification of five years if
the auditor has, whether directly or indirectly, acted in a fraudulent manner or abetted or
colluded in any fraud by, or in relation to, the company or its directors or officers.

Recent development: Supreme Court’s Judgment

Recently, the Supreme Court re-emphasised India’s adoption of the global trend toward greater
accountability for statutory auditors in its recent judgment in a batch of matters titled Union of
India v Deloitte Haskins and Sells LLP, (2023) 8 SCC 56 (“Judgment”).

The Judgment is a first-of-its-kind verdict on Section 140(5) of the Act and represents a
significant development in the realm of statutory audits. With this Judgment, the interpretation
and application of Section 140(5) appears to differ from the provision’s limited text and is
expanded in light of the mischief the provision set out to protect against – ie, punish past and
present statutory auditors for any involvement in fraudulent activities. The application of
Section 140(5) now entails automatic disqualification of statutory auditors encompassing a
broad spectrum of potential circumstances covering both past and future statutory audits. The
Supreme Court, in interpreting Section 140(5) based on its objective rather than its text, has
reinforced the global trend of increasing accountability of statutory auditors.

In this article, the authors delve into the consequences of the Judgment on the statutory
auditors, shedding light on the essential ingredients of Section 140(5) that may result in an
auditor’s five-year disqualification. This exploration not only dissects the nuances of Section
140(5) within the context of the Judgment, but also illuminates its broader implications on
auditor liability.

Furthermore, we explore additional facets within the Judgment, which, while not directly tied
to Section 140(5), bear significant relevance from a fraud detection perspective. One such facet
was the directions issued by the government pursuant to the Serious Fraud Investigation Office
(SFIO) report. In this regard, the Judgment highlighted that non-application of mind cannot be
presumed merely because the direction to prosecute the statutory auditors was issued in less
than 48 hours.

Through this discussion, we aim to provide a comprehensive understanding of how the

Judgment reshapes the landscape for disqualification of auditors involved in frauds and
underscores the evolving global emphasis on statutory auditors improving fraud detection and
prevention.

The text of Section 140 of the Act

Section 140 of the Act primarily deals with the procedures and processes related to the
appointment, resignation, and removal of statutory auditors for companies in India. It outlines
the steps for altering a company’s auditor, including the process for changing an auditor
through a court. In essence, this provision outlines the mechanisms through which alteration in
a company’s statutory auditors can be seamlessly orchestrated within the framework of the
law.

Sub-section (5) of Section 140 enables the National Company Law Tribunal (“Tribunal”) to direct
a company to replace its auditor under specific circumstances – ie, where the Tribunal
determines that the company’s auditor has, whether directly or indirectly, acted in a fraudulent
manner or abetted or colluded in any fraud by, or in relation to, the company or its directors or
officers. The essential ingredients mandated under this provision are (i) the existence of fraud
affecting the company, and (ii) the auditor’s direct involvement in either committing or aiding
such fraudulent activities. In essence, it empowers the Tribunal to change a company’s auditor
in situations where the company’s auditor and management are partners in crime.

Under the first proviso to Section 140(5), the Tribunal may prohibit a statutory auditor from
continuing as the auditor for a company. Instead, the Tribunal can instruct the central
government to appoint a replacement auditor if it deems such a change in the auditor is
necessary. This provision underscores the Tribunal’s power to immediately address issues of
integrity and effectiveness of auditing within a company.

The second proviso to Section 140(5) provides that an auditor against whom a final order is
passed becomes ineligible to serve as a statutory auditor for any company for a duration of five
years. This restriction applies to both audit firms and individual chartered accountants. This five
year disqualification is an automatic consequence arising from the Tribunal’s order directing a
company to change its auditor.

The fundamental rationale behind Section 140(5) of the Act is to prevent an auditor who has
been identified as being involved in fraud or collusion in one company from engaging in any
statutory audits for a five-year period, regardless of the company in question. This provision
seeks to encourage fraud detection and reporting by statutory auditors and aims to increase
the integrity of auditing practices by penalising statutory auditors connected to fraudulent
activities.

The Judgment’s context – relevant background and key issue

The Judgment is an offshoot from the crisis that hit Indian markets due to the inability of
Infrastructure Leasing and Financial Services Limited (ILFS) and its group companies to meet
their debt obligations. The ILFS crisis highlighted the vulnerability in the shadow banking sector
and impacted the stability of the entire Indian financial market as the ILFS group had a debt of
approximately USD12.8 billion.
The ILFS crisis raised questions about corporate governance, regulatory oversight, and the need
for better risk assessment in the financial sector. The government tasked SFIO with
investigating into the affairs of ILFS and its subsidiary companies. SFIO’s first conclusive
investigation report related to one of ILFS’s largest subsidiaries – ie, IL&FS Financial Services
Limited (IFIN).

SFIO conducted a detailed investigation resulting in a report adding up to 32,000 pages. SFIO
raised concerns regarding the conduct of statutory auditors associated with IFIN. SFIO’s
assessment discovered discrepancies in the audit work by IFIN’s auditors potentially indicating
that the statutory auditors were involved in the fraud by IFIN’s management. In response, the
government took steps based on SFIO’s findings. The steps were brought out in a sanction
order issued (“Sanction Order”) in less than 48 hours of the 32,000-page report being tabled by
SFIO before the government. One significant action against IFIN’s auditors, specifically Deloitte
Haskins & Sells LLP (“Deloitte”) and B S R & Associates LLP (BSR), was under Section 140(5) of
the Act (“140(5) Petition”). This was in addition to the criminal proceedings initiated under
Section 212 of the Act for offences of fraud under Section 447 of the Act.

The government, through the 140(5) Petition, sought directions from the Tribunal to “change”
BSR and Deloitte as IFIN’s auditors. This was accompanied with consequential disqualification of
both audit firms and their partners who worked on IFIN’s audit for five years.

Deloitte had served as the statutory auditor of IFIN since the fiscal year 2008–9 and had
completed the maximum statutory tenure of ten years in this role, which concluded with the
fiscal year 2017–18. BSR was appointed as the co-auditor alongside Deloitte for the fiscal year
2017–18, but subsequently resigned from their position as IFIN’s statutory auditor.

Naturally, both sets of auditors asserted that the 140(5) Petition was not maintainable as an
order to “change” them as IFIN’s auditors under Section 140(5) of the Act could not be passed
since they were no longer the statutory auditors of IFIN. The Tribunal did not agree with the
maintainability challenge.

Consequently, BSR and Deloitte challenged the constitutionality of Section 140(5) and the
maintainability of the 140(5) Petition before the High Court of Bombay. This legal dispute
centred around the fundamental question of whether Section 140(5) could be enforced against
statutory auditors who were no longer the statutory auditors of a company.

In addition to the above, BSR and Deloitte also challenged the Sanction Order on multiple
grounds, including the grounds of non-application of mind and haste given that the Sanction
Order could not have considered a 32,000-page report in less than 48 hours.

The Bombay High Court affirmed the constitutionality of Section 140(5) of the Act. However, it
interpreted this provision in a strict and limited manner. The Bombay High Court held that
Section 140(5) does not extend to statutory auditors who have formally resigned from their
positions or are no longer serving as auditors for the company. The government challenged the
Bombay High Court’s verdict before the Supreme Court.

The Judgment – scope of Section 140(5) of the Act

The Supreme Court upheld the constitutionality of Section 140(5) of the Act. It observed that
auditors have to act in larger public interest and therefore the law is justified in imposing
harsher consequences on statutory auditors who are found to have abetted the fraud rather
than the main perpetrators of fraud.

On the interpretation and application of Section 140(5), the Supreme Court held that the
provision can be invoked against auditors who were no longer the statutory auditors of the
company. It upheld the Tribunal’s power to examine the allegations of fraud against auditors
under Section 140(5) of the Act despite resignation and/or discontinuation of the auditors. The
Supreme Court clarified that the punishment of disqualification for five years under Section
140(5) is not limited to statutory auditors who resist relinquishing their role but also
encompasses statutory auditors from the past who may have already resigned or retired.

Clarifying that the second proviso to Section 140(5) is a substantive provision, the Supreme
Court reasoned that the punishment of disqualification was added by parliament to (i) make the
provisions against statutory auditors acting in a fraudulent manner more stringent, and (ii)
impose inevitable consequences on such auditors. Statutory auditors consequently cannot
avoid the final order and consequence of such final order under the second proviso to Section
140(5) by resigning after an application is filed. The Supreme Court held that once a proceeding
is initiated under Section 140(5) against a statutory auditor (either past or present), the
proceedings need to be taken to their logical end – ie, a determination as to whether the
auditor was/is involved in any instance of fraud and, if so, the consequences that should follow.

In order to possibly balance the rights of statutory auditors, the Supreme Court clarified that
the disqualification under Section 140(5) of the Act may be imposed only once (i) the Tribunal
conducts a comprehensive inquiry on the allegations of fraud by the statutory auditor given
that it has all the powers of a civil court to take upon a detailed inquiry, and (ii) the Tribunal
determines that the auditor, either directly or indirectly, engaged in fraudulent activities or
actively supported or colluded in any fraud connected to the company or its directors or
officers. This sets out prerequisites for adjudication of any application seeking disqualification
of statutory auditors under Section 140(5) and mandates a procedural framework for assessing
statutory auditors’ culpability in cases of alleged fraud.

Additional takeaway from the Judgment – statutory auditors are treated differently than the
management of a company

The Judgment highlights the role of an auditor which entails a crucial point of reference and
clarity. The Supreme Court underscored the distinctive role of statutory auditors within the
framework of the Act. Specifically, it re-emphasised that statutory auditors function as
independent examiners of a company’s financial accounts and should not be regarded as
holding a position in the company’s administration or management.

This distinction in the roles of statutory auditors compared to the company’s management
serves to provide valuable clarity regarding the applicability of other provisions of the Act.
These provisions are primarily oriented towards regulating the company itself, its members,
board of directors, shareholders, or other individuals actively engaged in the company’s
operations. Importantly, this distinction explains that the legal provisions designed to punish
the company’s management and regulate its affairs cannot be invoked against statutory
auditors.

Additional takeaway from the Judgment – reports issued by SFIO

The Supreme Court in the Judgment clarified that it cannot be presumed that there was a non-
application of mind in passing the Sanction Order on the basis of a 32,000-page report of SFIO
merely because the direction to prosecute was issued in less than 48 hours.

Another question before the Supreme Court was whether any action could be taken based on
SFIO’s report into the affairs of IFIN when SFIO’s larger investigation into the affairs of the
entire ILFS group was still ongoing.

The Act distinguishes between two types of reports.

 An interim report – issued by SFIO while an investigation is ongoing.

 A final report – released upon the conclusion of the investigation.

The Supreme Court upheld the validity of the government’s directions based on SFIO’s report
on IFIN. This validity holds even though SFIO’s investigation into other aspects related to IFIN
and the broader ILFS group are still ongoing.

The Supreme Court explained that SFIO’s report comprehensively addressed the issues within
its purview and provided conclusive findings for each of these issues. Therefore, it cannot be
considered an incomplete or “interim report” merely because SFIO’s investigations into other
aspects or group companies are still pending. This distinction ensures that the government and
SFIO can take appropriate actions based on the final findings of SFIO available without having to
wait for the entirety of the investigation to conclude.

Conclusion

The courts in India have held that an auditor’s role is that of a watchdog, and not a blood hound
within the corporate ecosystem. Their primary responsibility is to safeguard the interests of a
company’s shareholders by ensuring that the financials of a company bring out the true and fair
picture of the financial conditions of a company. In doing so, the auditors are to detect and
prevent fraud committed by the company’s directors and officers. Any evaluation of the extent
to which statutory auditors can be held accountable for instances of fraud within a company
has to keep in mind this established role of statutory auditors.

The Judgment is a pivotal shift in the application of Section 140(5) and carries substantial
implications with heightened accountability for statutory auditors. The key takeaway from the
Supreme Court’s interpretation of Section 140(5) of the Act is that the provisions serve not only
to facilitate the replacement of a statutory auditor in cases of fraudulent activities but also to
impose punitive measures. Importantly, these measures apply not only to currently serving
statutory auditors but also extend to former auditors who may have been involved during the
period under investigation. The ramifications resonate with the global trend of detailed
regulatory rigour and enhanced accountability of statutory auditors involved in corporate
frauds as it underscores the seriousness with which fraudulent activities in auditing need to be
treated.

This is all the more important because there are various other laws in India which also hold
people liable for fraud. One such provision contained in the Act itself is Section 447. This
provision provides for criminal liability for all those people who are found guilty of fraud,
including auditors. Therefore, the ramifications under Section 140(5) are in addition to other
prosecutions, penalties, and liabilities that may fall upon an errant auditor who is involved in
fraudulent activities.

The Judgment does aim to strike a potential balance in safeguarding the rights of statutory
auditors. The disqualification of five years under Section 140(5) of the Act can be imposed only
once the Tribunal, after conducting a detailed inquiry into the allegations, arrives at a
conclusive determination that the auditor was directly or indirectly involved in fraudulent
activities. Any judicial or quasi-judicial forum assessing allegations of fraud needs to examine
complex questions of fact. Thus, the Tribunal needs to adopt a thorough and reliable procedure
which safeguards the rights of the statutory auditors while conducting the detailed inquiry
under Section 140(5) of the Act. The exact procedural framework that the Tribunal adopts for
such matters remains to be seen.

Lastly, the Judgment reinforces the outlook and approach of the government on reports issued
by SFIO. It highlights a presumption of diligence for swift actions taken by officers analysing a
report from SFIO, despite the voluminous nature of the report. The affirmation that the
government can take action based on SFIO’s conclusions, even if broader investigations are
ongoing on related topics, indicates that a similar approach is likely to be followed in other
investigations, especially those into large-scale corporate fraud which require timely action.
Compensation of victim of crime in India

Who is a victim of crime

 Any person, group, or entity who have suffered harm, injury or loss due to illegal
activities of others. The harm may be economical, mental, or physical.
 Thus any person who has suffered harm because of violation of criminal law is a victim.
 A person will be considered as a victim even when the offender is not identified or
prosecuted. Term victim also includes individuals who have suffered harm as a result of
assisting victims in distress or to prevent victimization.
 Not only the person who suffered loss or injury are the victim, but in some cases, the
near and dear of victims (family members) are also the victims.

Can a victim of crime get compensation in India

Yes. A victim of the offence can get compensation in India. But there is a procedure which
needs to be followed. We will discuss the procedure at length in the later part of this article.

How can the compensation be sought

The compensation has to be ordered by the court. Compensation can be sought through the
procedure established by the court. Compensation is awarded for material as well as non-
material damages.

Material damages include medical expenses, loss of livelihood, etc. Non-material damages
include pain, suffering, mental trauma, etc. In criminal cases, the victims can directly apply for
the compensation, and it is the duty of the lawyer representing the victim to demand such
compensation.

Laws governing compensation of victims of crime in India

 The provisions relating to compensation to victims of crime are contained in sections

357, 357(1), 357 (2), 357 (3), 357A, 358, 359 and 250 of the Code of Criminal Procedure,
1973.
 Constitution of India also provides for certain safeguards to the victim of crime. Article
14 and 21 of the Constitution supports the argument.

Victim compensation under The Code of Criminal Procedure, 1973

Where conviction and fine is part of the sentence

When an accused is proven guilty, and the court passes an order which contains a fine of any
denomination, the court can order such fine or any part of it to be paid to the victim of crime.
The fine imposed is utilised to compensate the victim of fine in the following ways.
 #1 Compensating for the expenses incurred during litigation (357 1 a)

 This is the essential relief which a victim of a crime must get. Litigation costs in India are
very arbitrary. The lawyer charges hefty amount. Getting justice at times adds to the
burden of the victim itself. Instead of getting justice, the victim is trapped in the
honeycomb of justice delivery system.
 The court knows this fact and thus, compensate victim by providing them the expenses
incurred during litigation.

#2 Compensation for loss or injury to be recovered by the civil court

 If the court is of the view that, the compensation sought is beyond the jurisdiction of the
court, the court itself orders the appropriate court to look into the matter.
 In the payment to any person of compensation for any loss or injury caused by the
offence, when compensation is, in the opinion of the Court, recoverable by such person
in a Civil Court.

#3 Compensation in case of death

 One might question the fact that, who is the victim where death has been caused? As
the victim is already dead, who should be compensated for the crime?
 It is the family of the victim. Think of the mental trauma they might have gone through.
Medical expenses incurred, expenses during last rites. What if the victim who died was
the sole bread earner of the family?
 The Court is well aware of such situation. Therefore, the legislature and the judiciary tied
their hands to do complete justice.
 Victims are entitled to recover damages from the person sentenced for the loss resulting
to them from such death. When any person is convicted of any offence for having caused
the lives of another person or of having abetted the commission of such a crime.

#4 Compensation of victim of crime in offences like theft, cheating, criminal breach of trust,
etc

In cases of crime such as theft, cheating, criminal breach of trust, criminal misappropriation, the
Court either tries for recovery of goods and in the case where recovery is not possible court
orders for compensation for the price of such goods.

Compensation where fine is not a part of the sentence

The accused person in such case may be ordered by the court to pay a certain sum as
compensation to the victim of crime who suffered loss or injury. Indian legal system is victim
friendly. Victim’s rights are kept at the top of the priority list.
When a Court imposes a sentence, of which fine does not form a part, the Court may, when
passing judgment, order the accused person to pay, by way of compensation, such amount as
may be specified in the order to the person who has suffered any loss or injury by reason of
the act for which the accused person has been so sentenced.

Victim compensation Scheme

In 2009, the central government gave directions to every state to prepare a scheme which has
to be in agreement with the center’s scheme for victim compensation. The primary purpose of
the scheme is to provide funds for the purpose of compensation to the victim or his
dependents who have suffered loss or injury as a result of the crime and who require
rehabilitation.

Quantum of compensation under the scheme

It is the court which orders that the victim who suffered loss needs to get compensated. Under
the scheme, whenever a recommendation is made by the Court for compensation, the District
Legal Service Authority or the State Legal Service Authority, as the case may be, decides the
quantum of compensation to be awarded.

Compensation in cases where the accused is not found guilty or the culprits are not traced

Where the cases end in acquittal or are discharged, and the victim has to be rehabilitated, the
court may make a recommendation for compensation.

Where the offender is not traced or identified, but the victim is identified, and where no trial
takes place, the victim or his dependents may make an application to the State or the District
Legal Services Authority for an award of compensation.

Who is to provide compensation in the above case

 The State or the District Legal Services Authority shall, after due enquiry-award adequate
compensation by completing the inquiry within two months.
 Also, it is the duty of the State or the district legal service authority to provide an
immediate first-aid facility or medical benefits to the victim free of cost on the certificate
of the police.

Treatment of victim of crime

All hospitals, public or private, whether run by the Central Government, the State Government,
local bodies or any other person, shall immediately, provide the first-aid or medical treatment,
free of cost, to the victims of any offence covered under the following of the Indian Penal Code,

 376 (Rape)
  376A (intercourse by a man with his wife during separation)
 376 B (intercourse by a public servant with a woman in his custody), 376 C (Intercourse
by superintendent of jail or a remand home), 376 D (intercourse by any member of the
staff of a hospital with any woman in that hospital) of the Indian Penal Code.
 376 C (Intercourse by superintendent of jail or a remand home),
 376 D (intercourse by any member of the staff of a hospital with any woman in that
hospital) of the Indian Penal Code

What to do in case of inadequate compensation

If the trial Court, at the conclusion of the hearing, is satisfied, that the compensation awarded
under section 357 is not adequate for such rehabilitation, or where the cases end in acquittal or
discharge and the victim has to be rehabilitated, it may make a recommendation for
compensation.

When is the compensation to be provided

 Along with the duty of the offender, it is the duty of the state too, to compensate the
victim. Compensation to the victim of crime can be provided:
 At the conclusion of the trial. That is on the orders of the court.
 When inadequate compensation is granted by the lower court to the victim of crime, the
Appellate Court might increase the compensation.
 Where accused is not traceable, it becomes the duty of the state to compensate the
victim of the crime.

Central Victim Compensation Fund Scheme

The Central government in 2015 formulated the CVCF scheme to compensate the determined.
Every state has their own guidelines which decide the procedure.

An attempt has been made by iPleaders to bring forth the procedure by examining different
scheme of the different states. This is a standard procedure which one might follow. To know
the exact step by step procedure, please see your state’s guidelines on Victim compensation
fund.

Step 1 Making an application before the District/State Legal Service Authority

 An application can be made for temporary or final compensation. It can be filed by the
Victims or their dependents or the SHO of the area.
 The application must be submitted along with a copy of the First Information Report
(FIR), medical report, death certificate, if available, copy of judgment/ recommendation
of court if the trial is over, to the State or District Legal Services Authority
Step 2 The scrutiny stage.

District Legal Service Authority of every state first verify the content of the claim. Specific loss,
injury, rehabilitation is taken into consideration.

Step 3 Deciding the quantum of compensation to be given to victim of crime

The quantum of compensation to be granted is decided on the following factors,

 The gravity of the offence and the loss suffered by the victim.
 Medical expenditure incurred during treatment.
 Loss of livelihood as a result of injury or trauma.
 Whether the crime was a single isolated event (Example Theft) or whether it took place
over an extended period of time (Example multiple times, Rape with a woman who has
been locked in a house)
 Whether the victim became pregnant as a result of such offence.
 In the case of death, the age of deceased, his monthly income, the number of
dependents, life expectancy, future promotional/growth prospects etc.
 Or any other factor which the Legal Service Authority might deem fit.

Step 4 Method of disbursement of compensation

 The amount of compensation so awarded shall be disbursed by the respective Legal

Service Authority by depositing the same in a Nationalized Bank in the joint or single
name of the victim/dependent(s).
 Out of the amount so deposited, 75% (seventy-five percent) of the same shall be put in a
fixed deposit for a minimum period of three years.
 The remaining 25% (twenty-five percent) shall be available for utilization and initial
expenses by the victim/dependent(s), as the case may be.
 In the case of a minor, 80% of the amount of compensation so awarded, shall be
deposited in the fixed deposit account and shall be drawn only on attainment of the age
of majority, but not before three years of the deposit

Here is a list of minimum compensation to be provided to victim of a crime. This list is as per
the notification by the Central government on CVCF scheme.
 The amount of compensation will increase by 50% if the victim is below 14 years of age

courtsey: http://mha.nic.in/sites/upload_files/mha/files/CVCFFuideliness_141015.pdf

Where to complain when the compensation is released by the authority, but the same has
not reached in the hands of the victim

 This is an unforeseen situation which can further worsen the condition of the victim.
 Where the funds are released, but the allotted fund has not reached to the victim, it is
preferred to go in person to the District/Legal Service Authority and complain the same.
 The Legal Service Authority might ask you to inquiry the same with the bank authorities.
Do as advised by the Legal Service Authority.
 District/Legal Service Authority is designed to help the people, and they are performing
their duty well. But if the issue is not redressed yet, there is no other option left than to
fight another legal battle.
 It is advised to file a writ petition in the High Court under Article 226 of the Indian
Constitution.
The purpose of the National Human Rights Commission

Introduction

‘To deny people their human rights is to challenge their very humanity.’

-Nelson Mandela

The pre-eminent role that the Universal Declaration of Human Rights played in igniting the flare
of ‘humanity’ and ‘human rights’, in conjunction with every facet that fell under its ambit,
found its way to kindle the same spirit in India, in 1993. The United Nations, in 1991,
established key principles to form a concrete base for Human Rights’ institutions, to further the
interest and ensure uniformity in its execution. In pursuance of the same, it concluded the Paris
Principles on Human Rights, which led to the birth of the ‘Protection of Human Rights Act, 1993’
[‘Act’] in India. In accordance with Section 3 of the said Act, the State is obliged to form a
‘National Human Rights Commission’ [‘NHRC’] to ensure accurate protection, representation,
and furtherance of Human Rights in our nation.

The NHRC – What is it?

The NHRC, alias, the ‘watchdog of human rights’, is considered to protect the rights of the
people enshrined in the constitution, in addition to those rights assumed to be inherently
available to them, for being human. The Commission was established on 12th October 1993
and sits at its headquarters, in New Delhi, India. For 27 years it has served the needs of the
people of India, to protect the ‘rights relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants.’

Composition of the Commission

The NHRC, as stated above, avails its functions, composition, powers, and authority from the
Act of 1993. The constituting body in the NHRC is expressed under Section 3 (2) to Section 3 (4)
of the Act.

Sr. Compositional Break-

Pre-requisites and Eligibility Term of Office
No. down
Term of 5 [Five] years, or till
Has been the Chief Justice of the the date he attains 70
1 1 [One] Chairperson
Supreme Court of India [Seventy] years of age;
whichever is earlier.
Term of 5 [Five] years, eligible
Is or has been a Judge of the
2 1 [One] Member to re-term for another 5 [Five]
Supreme Court
years.
3 1 [One] Member Is or has been the Chief Justice of a Term of 5 [Five] years, eligible
High Court in India to re-term for another 5 [Five]
 years.
Persons having knowledge of Term of 5 [Five] years, eligible
4 2 [Two] Members practical experience in handling to re-term for another 5 [Five]
matters of human rights years.
Chairpersons of-

 National Commission for

Minorities
 National Commission for Term of 5 [Five] years, eligible
5 4 [Four] Members the Scheduled Tribes to re-term for another 5 [Five]
 National Commission for years.
the Scheduled Tribes
 National Commission for
Women

1 [One] Secretary-
6 General/ Chief As appointed by the Centre/State
Executive Officer

Appointment of the Members in the NHRC

The appointment and removal of the commission is done on the basis of Sections 4 and 5 of the
Act. The provisions laid thereunder are as follows:

Appointment of Members: The President of India shall make the following appointments, with
consideration and recommendations from a ‘Committee’ formed under this Section. This
Committee shall consist of the following representatives:

 Prime Minister as the Chairperson;

 the Speaker of the Lok Sabha (member);
 the Central Minister of Home Affairs (member);
 the Leader of the Opposition Party in the Lok Sabha (member); and
 the Deputy Chairman of the Rajya Sabha.

This Committee as formed hereinabove shall make recommendations to the President for the
appointment of the following into the Commission:

1. Chairperson ( Sr. No. 1 in the table)

2. 1 Member ( Sr. No. 2 in the table) [if still a sitting judge, the appointment has to be with
prior consultation with the Chief Justice of India].
3. 1 Member ( Sr. No. 3 in the table) [if still a sitting judge, the appointment has to be with
prior consultation with the Chief Justice of India].
 4. 2 Members ( Sr. No. 4 in the table)

The absence and vacancy of any of the positions of the members of the ‘Committee’ as stated
hereinabove, does not render the appointment of any member to the NHRC void.

Resignation of Members: The members of the NHRC can, at any time, resign from their post on
the submission of a notice containing details of such resignation, to the President of India.

Removal of Members: In addition to the appointment of such members of the NHRC, the
President of India can also affect their removal, in the following cases:

 On the grounds of proved misbehavior and/or incapacity of such member;

 If such a member is adjudged as an insolvent
 If such member engages, during his tenure with the NHRC, in any other paid
employment outside his office of duty
 If such member cannot continue their term due to infirmity of body or mind;
 If such a member is convicted and sentenced to imprisonment for an offense that leads
to questioning such member’s moral standing.

At the State level of the HRC, the Governor has the authority and control to appoint and
remove the members of the State Human Rights Commission, in consultation with the same
positions of the government as stated for the NHRC, but at the state level of every state.

Functions of the NHRC

The NHRC, along with its basic motive of safeguarding the wellbeing and rights of every
individual in the country, has certain niche functions, which are enumerated under Chapter III
of the Act.

General Functions: The NHRC. amongst other facets of its existence, has the authority to
undertake the following:

 Take suo motu cognizance, or intervene, in any matter presented before it, or in any
other court after due permission of such court, involving the gross violation of human
rights and/or the negligence in the prevention of such violation of rights.
 Visit any jails or other institutions to keep a check on the treatment of detainees, and
make recommendations to the respective Government for the same.
 Review the Constitution of India and all other laws prevailing at the present time, and
suggest methods of making the same at par with current human right standards
 Keep a check on and provide recommendations for unemployment in India, and
measures to reduce the same.
 Ensure precise implementation of international human rights standards in accordance
with international treaties
  Undertake and promote research, and spread awareness through myriad sources of
multimedia, to ensure maximum knowledge of the field in maximum people in the
country
 The members of the NHRC have the power to take up the office or duties of the
Chairperson, in an event such Chairperson is incapacitated, or the members are directed
to do so by the President of India.
 The NHRC can send recommendations to the concerned Government authority for the
payments related to compensation of damages to victims in cases
 It can recommend the initiation of action against a guilty public servant, to the
respected authorities
 It can recommend the grant of interim relief to a victim, to the concerned government
authority

Powers related to Inquiries: In inquiring into complaints filed under the Act, the Commission is
granted powers of a Civil Court in trying a suit as per the directions of the Code of Civil
Procedure, 1908, in specific matters as prescribed to them, including but not limited to:

 Summoning and examining witness under oath

 Production of documents
 Receiving affidavits as proofs
 Issuing orders for examining witnesses and documents

In addition to these powers, the NHRC has the power to legally bind an individual to furnish
information that the Commission deems expedient in a case, and to enter into any premise
where they have reason to believe certain documents may be found, which according to them
is expedient to a case, and to seize and make copies thereof.

Powers related to Investigation: The NHRC has the power to utilize agencies in undertaking
investigations in relation to any inquiry filed with them, after due permission from the Central
or State Government.

To satisfy itself with the quality and authenticity of data received, the NHRC can also make any
inquiry, and examine any witness as it requires, to fulfill such a need. Further, if the NHRC
considers it necessary to examine any individual, and is of the opinion that the reputation of
such individuals might serve as a bias either for or against them in a trial, it has the authority to
give such individuals an opportunity to defend themselves, and to be heard in the proceedings.

Limitations of the NHRC

Although being a governmentally associated principal advocate for human rights in our country,
the NHRC does have certain misgivings that limit the authority it seems to have.

 Insufficient powers for rendering relief: The recommendations given by the NHRC are
not binding on any authority, be it legislative or executive. The Commission cannot
 penalize any authority or department for not following its orders or directions. The
NHRC cannot actually give pragmatic and complete judgments to aggrieved parties, like
courts, and is thus falling short in giving practical relief to the victims. Further, the time
limit given to each inquiry is 1 [One] year from the date of its admission in the
Commission. The NHRC can only entertain one case for a maximum period of 1 [One],
which could affect the quality of justice.
 Lack of Jurisdiction: As a safeguard for human rights throughout India, the NHRC is
failing at primarily reaching all the parts of the country. The State of Jammu and Kashmir
is not within the jurisdiction of protection and review by the NHRC, which invalidates
the country-wide scope of the Commission. Jammu and Kashmir, as evidently proved on
regular occasions, is the epicentre of gross human rights violations, by government
authorities, armed forces, law enforcement, etc., and the NHRC not being given the
jurisdiction of this state clearly shows the back seat that the Commission has in the
practical aspect of things. Further, the NHRC does not have means to mitigate human
right violations between private parties, unless such parties come to the forefront.
 Armed Forces: The NHRC does not have the jurisdiction to question and ask information
from the National Government, on matters relating to the working of the Armed Forces,
This severely limits the scope of ensuring human rights in all sectors, as they have to rely
solely on the Human Rights report submitted by the Centre in this regard.
 Shortcomings in Investigations: The NHRC does not have the means to carry out any
investigations with its own agenda and mode, but has to redirect such a request to the
Central or State Government so that they can appoint an Officer to undertake such an
investigation. Further, the time limit placed on the investigation hampers the working of
the NHRC, since they can only investigate a case for one year after its admission in the
Commission. This affects the work and quality of investigation undertaken by the NHRC,
and a great number of grievances may go unaddressed.
 Ceremonial Figure: The NHRC is considered to be a place for judges to go to, once they
retire, or feel their tenure as judges ending soon, and is commonly treated as a post-
retirement platform for judges, officers and bureaucrats. Further, the inadequacy of
funds delegated to its functioning, also severely compromises its activities.
 Other Limitations: In addition to all the above mentioned limitations, the majority of
the Commission comprises judges of the Supreme Court and the High Court, which gives
the NHRC a more judicial and legal touch. The lack of human right experts and civil
liberty experts is concerning, and can cause problems in judgement of certain inquiries.
Further, its functioning is bureaucratic, as most of the members in it are there due to
their political clout.

Controversy regarding the Commission

In being called ‘toothless tiger’ and ‘India’s teasing illusion’, the NHRC has faced a great deal of
criticism and backlash from the citizens and government authorities of India. In regards to the
composition and membership of the Commission, various happenings have led to controversies
regarding the same, which in turn affects the working of the NHRC.
In 1999, a journalist by the name of Shivani Bhatnagar was murdered, which led to a the outcry
of a scandal as the person charged with her murder was an IPS officer, Ravi Sharma. This case
implicating a high-ranking officer was reported to the NHRC, but was rejected on no explicit
grounds. This rejection of a case with clear disregard for human life, brought up varied
questions on the working and existence of the NHRC. The NHRC was termed as ‘useless’ and
‘not adept’ to handle situations of sensitive government matters.

Another ruckus was created, when the Chairman of the NHRC, the then Chief Justice of India in
2011, was implicated of owning assets disproportionate to his income. K.G. Balakrishnan J, was
questioned and was asked to resign by many well known jurists and judges of the Apex and
other high courts. Further, his son, in the face of all the criticism, had to resign from his political
party.

Recommendations

In order to make NHRC more effective, its powers could be increased in various ways to
increase its effectiveness and efficiency in delivering justice to the victims. The commission
should be empowered to provide interim and immediate relief including monetary relief to the
victim. In addition, the commission should be empowered to punish the violators of human
rights, which may act as deterrent to such acts in the future. The interference of the
government and other authorities in the working of commission should be minimum, as it may
influence the working of commission. Therefore, the NHRC should be given power to
investigate into the cases related to human rights violation by the members of the armed
forces.

 There is a need for complete revamping of NHRC to make it more effective and truly a
watchdog of human right violations in the country.
 NHRC efficacy can be enhanced by the government if commission decisions are made
enforceable.
 There is a need to change the composition of commission by including members from
civil society and activists.
 NHRC needs to develop an independent cadre of staff with appropriate experience.
 Many laws in India are very old and archaic in nature by amending which government
can bring more transparency in regulations.
 To improve and strengthen the human rights situation in India, state and non state
actors need to work in tandem.
 More powers: Its decisions should be made enforceable by the government. The
efficacy of commissions will be greatly enhanced if their decisions are made enforceable
by the government.
 Armed forces: The definition should be restricted to only army, navy, and air force.
Further, even in these cases the Commission should be allowed to independently
investigate cases of violation of rights.
 Commission’s membership: Members of NHRCs should include civil society, human
rights activists, etc. rather than ex-bureaucrats.
  Amending law: Misuse of laws by the law enforcing agencies is often the root cause of
human right violations. So, the weakness of laws should be removed and those laws
should be amended or repealed if they run contrary to human rights.
 Independent Staff: NHRC should have its independent investigating staff recruited by
itself, rather than the present practice of deputation.

Conclusion

In making the NHRC more effective, the powers granted to it could be increased in various ways
to increase its effectiveness and efficiency in the process of delivering justice to the victims of
human rights violations. The NHRC needs to be empowered and liberated from bureaucratic
and political control in order to effectively discharge its duties. It needs to have the liberty of
being able to make decisions that have a concrete and material impact to the situation. Making
it an independent organ, with more powers and a louder voice in the bigger picture, would
strikingly change the working of the nation, and give it an international impetus.