The concept of punishment arises, when it can be established that there has been a wrong done. The ‘wrong’ specified here, is of very many types, such as – taking a pen from a classmate without her knowledge to brutally killing an individual. Wrongs, in the present sense of the term, can be of both civil and criminal nature. For each of the wrongs committed by any individual, there are punishments existing of varying kinds. Wrongs occasion so commonly, that they are now considered as part and parcel of life, especially according to Emile Durkheim.
An analysis of punishments shows that, they were initially generally of retributive nature – that is, they followed the principle of ‘an eye for an eye’. This was a very instinctive method. Here, an individual would react to any mild irritation or annoyance, which (reaction) would take the form of a punishment.
Punishment is always a consequence for a crime. So, the first thing that needs to be established (in this article) for considering the evolution of punishment is that of evolution of crime. Initially, all acts were of two types – right and wrong. Doing the right acts might not be praised, but doing the wrong acts were and are to be definitely punished. There was no clear demarcation as to one act being a crime and the other not.
The number of crimes in the world have not changed much, but the ways and means of committing a crime has increased. There are new weapons created for killing people, such as guns, missiles, and atom bombs, to name a few, which were not in existence previously. Moreover, certain actions that were considered to be crimes then are not so anymore, such as homosexuality or bisexuality. In many religious societies, transgenders were considered to have sinned and should be punished so that the stain of the sin is removed from them. In many other societies, transgender women are known to bring prosperity.
But by and large what constitutes a serious crime have remained the same. Murder, theft, and rape still remain crimes and there are suitable punishments given for the same in various jurisdictions. This is because the society as a whole is made up of individuals who believe similarly. This is in turn due to their evolution together as a society that have helped determine their collective sense of culture, tradition, and moral compass. This is what that decided what actions should be treated as wrongs and the degree of such wrongs.
PUNISHMENT AND ITS EVOLUTION – IN BRIEF
When a crime is committed now, the punishment is given after considering all the facts and circumstances regarding the crime. One characteristic of punishment that can definitely be said to have stood the test of time is the fact that the punishment has always ended up destroying the reputation of the perpetrator. This was and is especially true in the cases where the accused was convicted for his crimes, irrespective of whether or not he had actually committed the crime.
Primitive people, despite the current understanding of naming them to be so as a way of explaining their rash acts, actually had a list of acts that they referred to as crimes. They considered treason, witch craft, sex offences such as incest, poisoning, sacrilege, and breach of hunting rules to be actions worth punishments like exile or banishment. At this stage, the only thought that can actually be termed to be primitive is that the punishment is excessive as compared to the crime. But back them, the punishment was mostly instinctive and retributive such as, an eye for an eye. So, every small action, irrespective of whether or not the action was wrong, had an instinctive action as a counter that counted as punishment, especially among the primitive people.
Then came the ancient times where crimes and punishments were influenced by religion as well. Moreover, in this stage there was a part played by the society when it came to both the sides of the crime – that is, the side of the aggrieved and the side of the perpetrator. The society punished the perpetrator with a punishment that was more or less equal to the crime committed. But this equality was established as per the standards of morality prevalent at that time. The society also calmed the aggrieved to such a degree whereby the perpetrator was not hurt because of the revenge-oriented actions of the aggrieved. The proportionality that they tried to promote with regard to the crime and the punishment was not as equal as the situation now. It was highly unequal, but they still tried. Whipping (the number which was deemed appropriate for the crime so committed), stoning, hanging by death were the punishments prescribed . This was also the time where due to the prominent role played by religion, the concept of taboo evolved (incest, for example).
In the classical age, the most prominent code of law that was used for punishment were the Twelve Tables . This table contained various rights of the people as well actions that were deemed to be right and wrong and hence the wrong acts had punishments attached as well. The authority to punish rested with the head of the family. It was legally permitted to inflict torture, but that could be done only on slaves. Most of the actions that were considered to be crimes were because they were considered to be a sacrilege (actions that were against what had been deemed sacred). Religion played a significant role, for it is Roman law that is the base of every major set of legislations across the world. Europe adopted the Roman law in most of its important laws on all matters – be it civil, criminal, family, or any other type of law. By colonisation, this eventually spread to all countries and legal systems across the world. Punishment mostly took the form of death – only in several ways such as crucifixion, decapitation, and other equally gruesome ways. Other innovative ways by which the end goal of death as punishment was realised was also appreciated . But later, in the same period, saw the emergence of fines. Sometimes debtors who were unable to pay their debts became slaves.
Then came the dark ages wherein the distinction from tort (similar to the now civil wrong) and crime was more pronounced. The tortfeasor (person who commits the tortious act) was punished by having to pay fines. This age saw the punished individual being made an example of to prevent others from doing any criminal activities. Deterrence was given so much importance that people at power came with very many ingenious ways and means to punish the offenders.
The eighteenth century saw a tremendous revolution in the minds of the people regarding the barbarism that existed in the society. This was specifically against the inequality of punishment meted out by the rulers. All those ways by which the ultimate punishment was death as per the above specified cases, was opposed to a considerable extent. This struggle initiated in Italy, when a person named Beccaria wrote his extremely popular book “On Crimes and Punishments”. In this book, he specifically spoke about the hideous punishments and how capital punishment was not the solution and also substantiated on the same note. The book then travelled to France, where Voltaire translated the book to French and published it by making only a small difference – he added a foreword . This book was responsible for almost creating a revolution in the field of penology that appealed to the softer side of the society. It wanted to end the ugly side of punishments and establish reforms that considered prisoners as persons as well. This revolution happened in England as well, but in a different manner. A John Howard had visited the prisons and was appalled by the condition of the cells as well as the prisoners. He appealed that the prisoners should be considered as humans and hence their treatment should be drastically changed, for the benefit of humanity. He was among the first, who brought out the concept that the prisoners are capable of being reformed and such option could be chosen instead of the merciless and thoughtless method of killing the prisoners. All these expressions of thought became reality at around the 1820s in the United States of America. Subsequent changes for the better kept happening continuously. These changes promoted reformatory actions to be taken as punishment rather than capital punishments. This saw a reduction in capital punishments as well.
In India, all the punishments that will ever be awarded by the Courts are mentioned in Chapter III of Indian Penal Code. There are separate sections that specify the punishments for each offence mentioned in the Code. These punishments are to be constitutional, because in an indirect manner, the Constitution is considered to be a source of criminal law. This means that the punishments should be such that the Fundamental Rights of the accused are not violated. This is why there are no drastic punishments such as castration for rape and guillotine for mass murder.
In the current scenario, there ought to be more effective and rigorous punishments given to the accused. This should be so to decrease the ever-growing crime rate in the country, as well as to let the punishment be a deterrent. To bring justice to these victims the punishment should be quick and drastic too.
By
Aparna Venkataraman
Tamil Nadu National Law University
