Kinds of punishment: historical and modern

1. Punishments of the past

• Corporal punishment: flogging, whipping, caning. Cheap and quick, and thought to deter. It brutalises both the offender and the official, and it humiliates without reforming. In India whipping was authorised by the Whipping Act, 1909 and abolished by the Abolition of Whipping Act, 1955.
• Mutilation and branding: cutting off the hand of a thief, branding the forehead. Permanent, disproportionate, and it marks the offender for life so that he cannot return to honest work. Abandoned everywhere that accepts human dignity as a value.
• Pillory and stocks: public exposure to ridicule. Abandoned because it depended on crowd cruelty and its effect could not be measured.
• Banishment and transportation: removal of the offender from the community. The British transported Indian convicts to the Andaman Islands (the Cellular Jail at Port Blair). Section 53 IPC listed transportation until the Code of Criminal Procedure (Amendment) Act, 1955 replaced it with imprisonment for life.

The common thread is the movement described by Foucault and others: from punishment of the body, in public, to deprivation of liberty, in private, under rules. Modern Indian law has no corporal punishment at all, and Article 21 would forbid its return.

2. Punishments today

Section 4 BNS (old section 53 IPC) lists death, imprisonment for life, imprisonment (rigorous or simple), forfeiture of property, fine and community service. Each has a penological profile.

• Death: the ultimate incapacitation and, its supporters say, deterrence. Its irreversibility is the main objection. See the Unit II notes on the rarest of rare doctrine and the death penalty debate.
• Imprisonment: protects society while the offender is confined and allows reformative programmes. Its defects are well documented: contamination by hardened offenders, loss of employment and family ties, overcrowding, and the stigma that makes reintegration hard. Short sentences have the defects without the time needed for reform, which is why penologists favour alternatives for them.
• Forfeiture of property: now limited to specified offences and to proceeds of crime. It hits the motive of economic offences directly.
• Fine: flexible, cheap to administer, causes no contamination, and can be used to compensate the victim (section 395 BNSS). Its weakness is inequality: the same fine is trivial for a rich offender and crushing for a poor one, and imprisonment in default sends the poor to jail for poverty. Some countries use the day-fine, fixed as a number of days' income, to meet that objection.
• Community service: new in the BNS, for petty offences such as theft of property under five thousand rupees by a first offender who returns it (section 303(2)), attempt to commit suicide to compel a public servant (section 226), defamation (section 356(2)) and a few others. It keeps the offender out of prison, makes him repair harm to the community, and costs the State little.

3. Life imprisonment

The question that comes up is whether life imprisonment means imprisonment for the whole of the remaining life, or for fourteen or twenty years.

• Gopal Vinayak Godse v. State of Maharashtra, 1961 INSC 6, AIR 1961 SC 600: a sentence of transportation or imprisonment for life is a sentence for the whole of the remaining period of the convict's natural life. Remission rules do not convert it into a fixed term; the convict can be released early only if the appropriate Government actually remits the sentence.
• The statute supplies a floor. Section 475 BNSS (old section 433A CrPC) provides that a person sentenced to life for an offence punishable with death, or whose death sentence has been commuted to life, shall not be released unless he has served at least fourteen years. This is the source of the popular belief that life means fourteen years. It means at least fourteen years before remission can be considered.
• Swamy Shraddananda v. State of Karnataka, 2008 INSC 853, (2008) 13 SCC 767: a three-judge Bench, finding the case short of the rarest of rare but life with ordinary remission inadequate, directed that the convict not be released for the rest of his life. It recognised a special category of sentence between death and ordinary life.
• Union of India v. V. Sriharan, 2015 INSC 886, (2016) 7 SCC 1: the Constitution Bench approved Shraddananda. The High Court and the Supreme Court, in place of death, may impose life imprisonment for a fixed term beyond fourteen years, or for the rest of natural life, and put it beyond the statutory remission power. Life imprisonment means imprisonment for the rest of life, subject to the remission power exercised in accordance with law.

The BNS now says so in terms for several offences: rape of a girl under twelve (section 65(2)), gang rape (section 70) and murder by a life convict (section 104) are punishable with imprisonment for life “which shall mean imprisonment for the remainder of that person's natural life”.

4. Solitary confinement

Sections 11 and 12 BNS (old sections 73 and 74 IPC) allow the court, for an offence punishable with rigorous imprisonment, to order solitary confinement for not more than three months in all, not exceeding fourteen days at a time, with intervals. Penologists condemn it: long isolation causes serious psychological harm and does nothing to reform.

The Supreme Court has confined it sharply. In Sunil Batra v. Delhi Administration, 1978 INSC 147, (1978) 4 SCC 494, the petitioner, under sentence of death, had been kept in solitary confinement under section 30(2) of the Prisons Act, 1894 while his appeal was pending. The Court read that provision down: a prisoner is “under sentence of death” only when the sentence has become final and executable, after appeal and the disposal of mercy petitions, so he could not be segregated before then. Solitary confinement imposed as a prison punishment, without a court sentence, was held to violate Articles 14, 19 and 21 except in the narrowest cases. In Shatrughan Chauhan v. Union of India, 2014 INSC 46, (2014) 3 SCC 1, the Court treated solitary confinement of death convicts before rejection of their mercy petitions as unconstitutional and a ground, with delay, for commutation.

5. Assessing the scheme

Modern penology looks for a range of measures wide enough to fit the offender. The Indian list is now wider than before, but imprisonment remains the default for most offences, community service is confined to a handful of minor ones, and there is no day-fine. The Malimath Committee (2003) recommended a wider range of non-custodial sentences; the BNS has taken a first step.

How this is examined

“Kinds of punishments” (February 2025, short note); “Life imprisonment” (August 2024 and October 2023, short notes); “Solitary confinement” (October 2023, short note). For the kinds-of-punishment note, give the historical forms in two lines, the section 4 list, and one merit and one defect of each modern form. For life imprisonment, the order is Godse, section 475 BNSS, Shraddananda, Sriharan and the BNS “remainder of natural life” wording. For solitary confinement, sections 11 and 12 BNS, then Sunil Batra (1978).