Penal Policy In India

The penal reforms in India during the past few decades have brought about a remarkable change
in the attitude of people towards the offenders. The old concepts crime, criminal and convicts
have radically changed. The emphasis has now shifted from deterrence to reformation of the
offenders. The age old discriminatory and draconian punishments no longer find place in the
modern penal system. Indian penologists are greatly impressed by the recent Anglo-American
penal reforms and have adopted many of them in the indigenous system. This does not, however,
mean that India did not have penal policy of its own prior to British influence. In fact, the Indian
law givers of the olden times were well versed in the science of penology and attached great
importance to penal sanctions. This is evident from the fact that Brahaspati Shastra contains
directions that an ideal penal policy always seeks the support of public opinion or Lokniti. Again,
Kautilya in his Arthashastra modelled his penal policy on utilitarian principles taking into
consideration various social factors, traditions and customs of the people. Expressing his views
on punishment Kautilya commented that punishment if too severe alarms a man, if too mild
frustrates him, but if properly determined, makes man conform to Dharma or righteous conduct.
The function of law (Vyavhar) according to him was to bring the wrong-doer on the right track by
a change in his attitude. One peculiar feature of the ancient penal system of India was that it
acknowledged the supremacy of Brahmins in matters of punishment. Perhaps the reason for this
privilege to Brahmins was that they were regarded as the spiritual leaders of Indian society and
hence were held in great esteem. This privileged section of the society enjoyed certain
concessions in matters of punishment. For example, where the normal punishment for an offence
was death and if the offender happened to be Brahmin, he was to be punished only with shaving
of his head. The leniency towards Brahmins in matters of punishment revived once again during
the British period though for different reasons. The British administrators were basically against
any discrimination in penal laws. But they accepted leniency towards Brahmins in matters of
punishment perhaps because they wanted to gain the sympathy and support of this prestigious
class of Hindu society by conceding certain concessions to them. These concessions were,
however, withdrawn in subsequent years of British rule in India.

As to the modes of punishment in ancient India, four main forms were known to have existed.
They were: (i) Admonition or warning (Vakdanda), (ii) Remonstrance (Prayaschitta), (iii) Fine
(Arthadanda), and (iv) Imprisonment, death or mutilation (Vadhadanda, Mritudanda or Aung
Vichheda). The first-offenders were usually punished with admonition. Remonstrance or penance
was regarded as an adequate punishment for improper acts perilous to society. If the wrong-doer
caused injury to someone's property or person, he was punished with fine whereas those who
committed serious crimes were imprisoned, amputated or done away to death. During the
medieval period the Muslim rulers introduced their own penal laws in India. The system being
retributive in nature and irrational and discriminatory in its application, failed to meet the ends of
justice. The Muslim law arranged punishments for various offences into four main categories, viz.
(1) Kisa, (2) Diya, (3) Hadd, and (4) Tazeer. These punishments carried with them a bias and
contempt for Hindus. However, with the decline of Moghul rule, the British captured political
power in India. The irrationalities of Muslim criminal law provided an opportunity for British law
administrators to substitute their own system of laws with necessary modifications so as to suit
the needs of India. While introducing the principles of English criminal law and methods of
punishment in the Indian criminal justice system, they exercised great caution to ensure that the
changes did not offend the sentiments of the indigenous people. The new system introduced by
the British rulers was far more rational, impartial and reasonable than their predecessors and was
therefore, readily accepted by the people of India. As already stated, the supremacy of Brahmins
no doubt revived once again but it was essentially a part of British diplomacy to divide and rule
Indian community. However, it came to an end in the closing years of British Company's rule in
India. The common methods of punishment introduced by British administrators in India included
the sentence of death, deportation, transportation, solitary confinement, imprisonment and
fines. Petty offences were punishable with fine. A well-organized system of police was
introduced to suppress crimes and apprehend criminals. The advance of penology in Anglo-
American world during 18th and 19th centuries had its own impact on Indian penal system.
Particularly, during the last fifty years significant penal reforms have been introduced in India.
The sentence of transportation, mutilation, solitary confinement, whipping or punishing the
offenders in public place are completely abolished and new reformative methods such as parole,
probation, open air prisons, borstals, reformatories, etc. have been adopted for the rehabilitation
of offenders. The modern techniques of handling the offender have proved to be a great success
in as much as they offer a 'chance' to an inmate to return to society as a law-abiding citizen and
this inculcates in him a sense of 'hope' that he is going to be trusted by the society after his
release from the institution. Modern penologists generally agree that reformation of offenders
should be the basic purpose of every penal system but at the same time the importance of
deterrence should not be undermined. Reformation and rehabilitation may be used as a general
method of treating the offenders but those who do not respond favorably to these corrective
methods of treatment must be severely punished. The penal measures must be directed to show
society's abhorrence to crime. It must, however, be stated that the Indian penal system seems to
be less effective as a control mechanism because it leaves many a criminals to enjoy the ill-
gotten gains of their criminal acts. Undoubtedly, the Indian penal policy is based on
individualized system but it seems to be working unjustly in favour of advantaged groups,
particularly the political high-ups' and those who are in power, with the result the deterrent
effect of punishment is considerably diminished. This is more true with punishment in bribery
and corruption cases and big financial scams where influential persons are dealt with leniently
because they are more articulate and are capable of maneuvering things in their favour. Mild
punishment or no punishment in such cases undermines the effectiveness of punishment as a
measure of crime control mechanism.