2) CONSTITUTIONAL UTILITARIANISM, MODERN TRENDS
The Indian Constitution was drafted with a view to avoid pain and get pleasure for
all. Bentham demarcated the difference between pain and pleasure, so codification is
necessary for implementation of pleasure. Part-III and Part-IV of Fundamental rights and
Directive Principles are examples of individualism and utilitarianism. Constitution
embodies all assemblage of volition or declaration by the State to give pleasure to all.
The enactment of Article 14,16 and 21 are particularly based on pain and pleasure theory
of Bentham.
The constitution of India embodies democratic, liberal and socialistic ideals
synthesizing the rights of the individuals with egalitarian aspirations of the masses.
FUNDAMENTAL RIGHTS VIS-À-VIS LEGAL POSITIVISM AND
UTILITARIANISM
The spirit behind fundamental rights signify positivistic perception for such rights
being identifiable or enforceable in cases of transgression of such fundamental rights
even by legislatures. The Constitution of India is viewed by the courts as the Grundnorm
to which all the statures have to conform and the validity of all legislative and executive
processes has to be in accordance with this supreme norm. The courts have been treating
fundamental rights as binding, obligatory and limitation upon the powers of the
legislatures and the executive.
In India there has been enough controversy as to whether judiciary should remain
indifferent to political and social change or should the fundamental rights existing status
quo or fundamental rights of the individuals who are unequally placed in society with
laws that have tried to uphold the directive principles of state policy. The judiciary
generally adopted a logical, legalistic, formal and rigid attitude that has naturally led
frequently to conflict between the courts and the Parliament. The Supreme Court adopted
and developed its philosophy and postures trying to determine rigorously the phrase ‘ the
procedure established by law’ mean two things. Negatively speaking it was a rejection of
the American doctrine of ‘due process of law’. Positively it meant an emphasis on
legality – the enacted law of the legislature in its strict and logical sense divorced from
the social context. Such interpretation can be termed as a kind of legal positivism or
what can be said as legal ‘objectivity’. In a series of crucial decisions of the Indian
Supreme Court involving socio-economic justice have been largely influenced by this
kind of legal positivism. Concept of legal positivism means positive law in codified
form. Bentham desired greatest happiness to an individual which could be possible by
recognizing and giving some rights to the people. We may also conclude that Bentham
and Austin have advocated for principle of utility and sovereignty. If we interpreted both
the views of jurists it can be said that without sovereignty there is no utility of the law or
there would be no pleasure to individuals.
Let us illustrate a few cases of the Supreme Court involving legal positivism,
State of Madras vs. Smt. Champakam 1951 SCR 525- in this case the Apex Court
refused to give a sociological interpretation to the Order of the Government which was
meant to serve the interest of the underprivileged. This led to the Constitution(First
Amendment) Act, 1951.
In A.K. Gopalan v. State of Madras (1950) SCR 88- the Court interpreted the
term law in the positivist sense of Stateside law and not as equivalent of law in the
abstract or general sense. This case has been characterized as the ‘high water mark of
legal positivism’.
In Golak Nath AIR 1967 SC p. 1643, - the Court made a positivistic comment
and observed ‘ ..that the Parliament will have no power from the date of this decision to
amend any of the provisions of Part III so as to take away or abridge the fundamental
rights’.
While in the Champakam case 1951 and Qureshi’s case 1958, the Supreme Court
had laid down the supremacy of the Fundamental Rights over directive principles, the
Golak Nath decision in 1967 enunciated the doctrine of a free liberal society.
However, in Kesavananda Bharti case, the Supreme Court struck the need of a
harmonious accommodation between the Fundamental Rights and the Directive
principles. It was only in this case that the directive principles underwent metamorphosis
and the court henceforth no longer opposed social change and social justice by
overreacting to the fundamental right. It is in this case that the court invented the basic
structure theory. Now, the true position is that every provisions of the Constitution can be
amended provided in the result, the basic foundation and structure of the Constitutuion
remains the same.
The Supreme Court in Fundamental Rights case made a clear balance between the
rights of the individual and the authority of the State. The basic structure theory,
therefore, is the epitome of contemporary Indian jurisprudence. It has been made amply
clear that the right to property is not a basic feature. Finally, Kesavananda rejects the
Bentham –Austin axis of separation of law and morals and makes judges the citadel of
secularism, democracy and social justice.
Another aspect of Indian positivism is the draconian legislation passed by
Parliament from time to time to meet both internal and external aggression to public order
and security of India viz. the Preventive Detention Act, 1950, the Proclamation of
Emergency of 1975, the Maintenance of Internal Security Act, 1971, the National
Security Act, 1980 etc. –these were some of the instances which vest especially in the
executive wide powers by which it can impose restrictions on the enjoyment of
Fundamental Rights by forbidding recourse to courts for enforcing such rights which can
be described executive despotism. Therefore, a claim to writ of habeas corpus being one
in the nature of enforcement of Article 21, a petition for such a right was not
maintainable so long as the right itself was suspended.
3.3 PERSONAL LIBERTY VIS-À-VIS LEGAL POSITIVISM UTILITARIANISM
Concept of legal positivism was propounded by Austin whereas the concept of
utilitarianism was propounded by Bentham. According to legal positivism there should
be a codified law and the law is command of sovereign. Bentham has also pleaded for
codification of laws. But the basic difference between the two is that Bentham pleaded
for to get pleasure and avoid pain whereas Austin said Law is always a command. Under
Article 21 – personal liberty – State can invade personal liberty according to process
established by law which means law made by the sovereign but on the other hand
personal liberty is based on principle of utilitarianism; individualism.
Conclusion: Article 21 is the blending of both principle of Bentham as well s of
Austin. Legal positivism is rigid in comparison to utilitarianism; individualism. For
better society which is leaning towards personal liberty in every way there should be
harmonious construction between legal positivism and individual utilitarianism.
3) PRINIPLES OF PENAL CODE
The theory of legislation enunciates Bentham’s moral and legal philosophy;
namely utilitarianism. These are a manual of instructions to a conscientious legislator
and are submerged with insights relevant, and often central to the sociology of law.
Bentham’s theory dealing with indirect means of preventing offence contains
seminal analysis and it is beginning of one aspect of theory of social control through the
law. Why are such means necessary? Bentham’s answer to this question is memorable.
“the penal system, though it may be made as perfect as possible, is defective in several
respects. The system can come into operation only when an offence has been committed
not before that. Every new instance of punishment, Bentham maintains is an additional
proof that punishment lacks efficacy. …” Moreover, punishment is itself an evil, though
necessary to prevent greater evils. Bentham lays bare the anticlimax of the penal system
as a means of social control.
Q. What is the object of punishment? Discuss various principles of punishments
and kinds of punishment.
Object of punishment?: Punishment is a reaction to crime and a means of social
control. Object of punishment is infliction of sufferings on the criminal provides a sense
of relief to the members of the society. Punishment involves the intentional infliction of
pain and/or the deprivation of rights and liberties
The purpose of punishment is to reduce crime
principles of punishments
The sociology of punishment seeks to understand why and how we punish;
the general justifying aim of punishment and the principle of distribution. Punishment
involves the intentional infliction of pain and/or the deprivation of rights and
liberties. Sociologists of punishment usually examine state-sanctioned acts in relation
to law-breaking; why, for instance, citizens give consent to the legitimation of acts of
violence.
Two of the most common political and ethical motivations for formal
punishment are utilitarianism and retributivism.
1. Retributivism
Retributivism covers all theories that justify punishment because the offender
deserves it. This is interpreted in two ways, either:
i.) a person must be punished because they deserve it, or
a person must not be punished unless they deserve it. Retributive theories usually put
forward that desert is a sufficient reason for punishment.
The main strands of retributivism are:
i.) Intrinsic Retribution: Offender deserves punishment because there is intrinsic good
in the guilty suffering.
ii) Lex Talionis: To restore the balance between offender and victim.
iii) Unfair Advantage Principle: To restore the balance by the imposition of extra
burdens on those who have taken over more than their fair share of benefits.
iv) Hegelian Retribution: Punishment annuls the wrong done.
v.) Liability: The offender had knowledge that he would be punished if he committed the
acts, and he therefore deserves punishment if he does it.
vi.) Social Contract Theory: We make a contract to give up certain rights in order for
other rights to be protected, when we break that contract we deserve to have our rights
taken away.
viii) Grievance Theory: The offender has caused a grievance for the victim, and the
punishment of the offender will satisfy the victim, and make up for that grievance.
The nature of desert means that the offender must be blameworthy and that an
offender deserves punishment simply because he has offended, and so his punishment
must relate to his wrongdoing. It can therefore be said to be backward-looking.
The theory of retributivism does propose a number of purposes of
punishment: to restore the balance), to openly and emphatically denounce crime, or to
provide satisfaction.
The principles of distribution can be derived from these purposes.
There are 3 main methods for deciding on punishment.
The first is that punishment should be equal or equivalent to the crime.
The second is that punishment should be in proportion to the harmfulness and
blameworthiness of an offender’s actions.
The third is that punishment should give satisfaction equal to the grievances caused.
[Critique of Retributivism
The above expalanations for deciding on punishment raise a few issues:
The idea of equal or equivalent punishment, however, proves to be impractical. How
can the equivalent of sexual assault be found in any current punishment?
To decide on punishment in terms of satisfaction in accordance with
grievances caused is also questionable. Honderich [1989:34] says that punishment is
not wholly justified and liberilized in terms of the offence, but provides “the contention
that a man’s punishment must provide satisfactions”. However if punishment is not
wholly dependent on the offence, but is in part to do with satisfaction, then it is in part,
consequentialist (and therefore not retributive).
The culpability principle is often used in deciding the punishment of
offenders. However there are large numbers of punishments handed down which do
not obey this principle. Particularly, this is the case where the harmfulness and
blameworthiness of offender’s actions are not proportionate to the punishment.
According to the retributivist explanation of punishment, two offences that have the same
punishment should be fairly similar in terms of the harmfulness and blameworthiness.
Therefore it can be seen that retributivist theories are not adequate to
explain why and how we punish.
2. Utilitarianism
Utilitarianism, as the name suggests and tells, covers all theories that justify the
evil of punishment only when that punishment has some utility. It is therefore forward
looking, and consequentialist in nature, as it holds the belief that, ultimately, the only
morally significant features of an act are the good and bad consequences produced by it.
The word utility has been used to justify punishment in two different ways in
utilitarian writing:
Use: that punishment is only justified when it has some use – that is, preventing further
crime.
Value: that punishment is only justified when it is most conducive to the welfare of
society, that is, the value society gains from the punishment is more than the
disadvantages incurred by the offender.
However most utilitarians agree that not only must punishment have both use and
value, but also that there be no other solution that would deter as effectively with less
distress.
Most utilitarianists agree that there are three ways to reduce crime:
incapacitation, deterrence and reform.
There are 2 main types of prevention: specific and general prevention.
Specific prevention is aimed at the offender him/herself whilst general prevention is
aimed at the public in general.
utilitarian justification of punishment:
Firstly, utilitarianism allows for innocents to be punished. Secondly, the utilitarian
justification of punishment as an investment does not uphold the claim of punishment to
be “something more and other” than burdens such as quarantine, war, etc imposed by the
state.
Utilitarianism as a justification for punishment can be seen to fall under the
category of a Theory of the Good rather than a Theory of the Right.
Critique of Utilitarianism
If utilitarian justifications of punishment were sound, then one would expect to find
certain conditions met by those who are punished. Looking specifically at imprisonment,
one would conclude that the people in our prisons are dangerous or have a long criminal
record (and are therefore in need of capacitation), that the amount of recidivism is low (as
offenders will have been deterred from committing future crimes) and that there will be
programs for rehabilitation and opportunities for reform in place.
Kinds of punishment: Punishments under the IPC may be distributed in the following
heads:-
1. Capital punishment: -puts an immediate end to the life of the offender. Law
Commission in its 35th report recommended that capital punishment should be
retained.
2. Afflictive punishments:- which provide corporal sufferings and create a
temporary effect such as flagellation, compulsory fasting etc.
3. Indelible punishments: -produce a permanent effect upon the body such as
branding and amputation.
4. Ignominious punishments: - expose the offender to the contempt of spectators
and make him to looked upon as unworthy the society of his old friends.
5. Chronic punishments:- most ancient. Object is to eliminate the criminal from
the society by sending them to far off and secluded place like Kala pani in British
rule.
6. Punishment simply restrictive: -impose restrictions on the offenders viz.
prohibition to exercise a certain profession or to visit a place.
7. Punishment simply compulsive: oblige a person to do something of which he
wishes to be exempted viz. direction of being present before an officer in a month.
8. Pecuniary punishment: - -depriving the offender of a sum of money or article or
property.
9. Quasi-pecuniary punishment:- depriving the offer of a kind of property
combined with some pecuniary profit.
10. Externment from a locality:- -offenders are externed from the locality. Viz. DP
Act sec. 47 and 48 are in vogue.
Justification of variety in punishments
A single punishment can never have all these qualities. Therefore, it is necessary
to combine them to vary them or to assort them in order to fid the composition of our
need.
The Indian Constitution was drafted with a view to avoid pain and get pleasure for
all. Bentham demarcated the difference between pain and pleasure, so codification is
necessary for implementation of pleasure. Part-III and Part-IV of Fundamental rights and
Directive Principles are examples of individualism and utilitarianism. Constitution
embodies all assemblage of volition or declaration by the State to give pleasure to all.
The enactment of Article 14,16 and 21 are particularly based on pain and pleasure theory
of Bentham.
The constitution of India embodies democratic, liberal and socialistic ideals
synthesizing the rights of the individuals with egalitarian aspirations of the masses.
FUNDAMENTAL RIGHTS VIS-À-VIS LEGAL POSITIVISM AND
UTILITARIANISM
The spirit behind fundamental rights signify positivistic perception for such rights
being identifiable or enforceable in cases of transgression of such fundamental rights
even by legislatures. The Constitution of India is viewed by the courts as the Grundnorm
to which all the statures have to conform and the validity of all legislative and executive
processes has to be in accordance with this supreme norm. The courts have been treating
fundamental rights as binding, obligatory and limitation upon the powers of the
legislatures and the executive.
In India there has been enough controversy as to whether judiciary should remain
indifferent to political and social change or should the fundamental rights existing status
quo or fundamental rights of the individuals who are unequally placed in society with
laws that have tried to uphold the directive principles of state policy. The judiciary
generally adopted a logical, legalistic, formal and rigid attitude that has naturally led
frequently to conflict between the courts and the Parliament. The Supreme Court adopted
and developed its philosophy and postures trying to determine rigorously the phrase ‘ the
procedure established by law’ mean two things. Negatively speaking it was a rejection of
the American doctrine of ‘due process of law’. Positively it meant an emphasis on
legality – the enacted law of the legislature in its strict and logical sense divorced from
the social context. Such interpretation can be termed as a kind of legal positivism or
what can be said as legal ‘objectivity’. In a series of crucial decisions of the Indian
Supreme Court involving socio-economic justice have been largely influenced by this
kind of legal positivism. Concept of legal positivism means positive law in codified
form. Bentham desired greatest happiness to an individual which could be possible by
recognizing and giving some rights to the people. We may also conclude that Bentham
and Austin have advocated for principle of utility and sovereignty. If we interpreted both
the views of jurists it can be said that without sovereignty there is no utility of the law or
there would be no pleasure to individuals.
Let us illustrate a few cases of the Supreme Court involving legal positivism,
State of Madras vs. Smt. Champakam 1951 SCR 525- in this case the Apex Court
refused to give a sociological interpretation to the Order of the Government which was
meant to serve the interest of the underprivileged. This led to the Constitution(First
Amendment) Act, 1951.
In A.K. Gopalan v. State of Madras (1950) SCR 88- the Court interpreted the
term law in the positivist sense of Stateside law and not as equivalent of law in the
abstract or general sense. This case has been characterized as the ‘high water mark of
legal positivism’.
In Golak Nath AIR 1967 SC p. 1643, - the Court made a positivistic comment
and observed ‘ ..that the Parliament will have no power from the date of this decision to
amend any of the provisions of Part III so as to take away or abridge the fundamental
rights’.
While in the Champakam case 1951 and Qureshi’s case 1958, the Supreme Court
had laid down the supremacy of the Fundamental Rights over directive principles, the
Golak Nath decision in 1967 enunciated the doctrine of a free liberal society.
However, in Kesavananda Bharti case, the Supreme Court struck the need of a
harmonious accommodation between the Fundamental Rights and the Directive
principles. It was only in this case that the directive principles underwent metamorphosis
and the court henceforth no longer opposed social change and social justice by
overreacting to the fundamental right. It is in this case that the court invented the basic
structure theory. Now, the true position is that every provisions of the Constitution can be
amended provided in the result, the basic foundation and structure of the Constitutuion
remains the same.
The Supreme Court in Fundamental Rights case made a clear balance between the
rights of the individual and the authority of the State. The basic structure theory,
therefore, is the epitome of contemporary Indian jurisprudence. It has been made amply
clear that the right to property is not a basic feature. Finally, Kesavananda rejects the
Bentham –Austin axis of separation of law and morals and makes judges the citadel of
secularism, democracy and social justice.
Another aspect of Indian positivism is the draconian legislation passed by
Parliament from time to time to meet both internal and external aggression to public order
and security of India viz. the Preventive Detention Act, 1950, the Proclamation of
Emergency of 1975, the Maintenance of Internal Security Act, 1971, the National
Security Act, 1980 etc. –these were some of the instances which vest especially in the
executive wide powers by which it can impose restrictions on the enjoyment of
Fundamental Rights by forbidding recourse to courts for enforcing such rights which can
be described executive despotism. Therefore, a claim to writ of habeas corpus being one
in the nature of enforcement of Article 21, a petition for such a right was not
maintainable so long as the right itself was suspended.
3.3 PERSONAL LIBERTY VIS-À-VIS LEGAL POSITIVISM UTILITARIANISM
Concept of legal positivism was propounded by Austin whereas the concept of
utilitarianism was propounded by Bentham. According to legal positivism there should
be a codified law and the law is command of sovereign. Bentham has also pleaded for
codification of laws. But the basic difference between the two is that Bentham pleaded
for to get pleasure and avoid pain whereas Austin said Law is always a command. Under
Article 21 – personal liberty – State can invade personal liberty according to process
established by law which means law made by the sovereign but on the other hand
personal liberty is based on principle of utilitarianism; individualism.
Conclusion: Article 21 is the blending of both principle of Bentham as well s of
Austin. Legal positivism is rigid in comparison to utilitarianism; individualism. For
better society which is leaning towards personal liberty in every way there should be
harmonious construction between legal positivism and individual utilitarianism.
3) PRINIPLES OF PENAL CODE
The theory of legislation enunciates Bentham’s moral and legal philosophy;
namely utilitarianism. These are a manual of instructions to a conscientious legislator
and are submerged with insights relevant, and often central to the sociology of law.
Bentham’s theory dealing with indirect means of preventing offence contains
seminal analysis and it is beginning of one aspect of theory of social control through the
law. Why are such means necessary? Bentham’s answer to this question is memorable.
“the penal system, though it may be made as perfect as possible, is defective in several
respects. The system can come into operation only when an offence has been committed
not before that. Every new instance of punishment, Bentham maintains is an additional
proof that punishment lacks efficacy. …” Moreover, punishment is itself an evil, though
necessary to prevent greater evils. Bentham lays bare the anticlimax of the penal system
as a means of social control.
Q. What is the object of punishment? Discuss various principles of punishments
and kinds of punishment.
Object of punishment?: Punishment is a reaction to crime and a means of social
control. Object of punishment is infliction of sufferings on the criminal provides a sense
of relief to the members of the society. Punishment involves the intentional infliction of
pain and/or the deprivation of rights and liberties
The purpose of punishment is to reduce crime
principles of punishments
The sociology of punishment seeks to understand why and how we punish;
the general justifying aim of punishment and the principle of distribution. Punishment
involves the intentional infliction of pain and/or the deprivation of rights and
liberties. Sociologists of punishment usually examine state-sanctioned acts in relation
to law-breaking; why, for instance, citizens give consent to the legitimation of acts of
violence.
Two of the most common political and ethical motivations for formal
punishment are utilitarianism and retributivism.
1. Retributivism
Retributivism covers all theories that justify punishment because the offender
deserves it. This is interpreted in two ways, either:
i.) a person must be punished because they deserve it, or
a person must not be punished unless they deserve it. Retributive theories usually put
forward that desert is a sufficient reason for punishment.
The main strands of retributivism are:
i.) Intrinsic Retribution: Offender deserves punishment because there is intrinsic good
in the guilty suffering.
ii) Lex Talionis: To restore the balance between offender and victim.
iii) Unfair Advantage Principle: To restore the balance by the imposition of extra
burdens on those who have taken over more than their fair share of benefits.
iv) Hegelian Retribution: Punishment annuls the wrong done.
v.) Liability: The offender had knowledge that he would be punished if he committed the
acts, and he therefore deserves punishment if he does it.
vi.) Social Contract Theory: We make a contract to give up certain rights in order for
other rights to be protected, when we break that contract we deserve to have our rights
taken away.
viii) Grievance Theory: The offender has caused a grievance for the victim, and the
punishment of the offender will satisfy the victim, and make up for that grievance.
The nature of desert means that the offender must be blameworthy and that an
offender deserves punishment simply because he has offended, and so his punishment
must relate to his wrongdoing. It can therefore be said to be backward-looking.
The theory of retributivism does propose a number of purposes of
punishment: to restore the balance), to openly and emphatically denounce crime, or to
provide satisfaction.
The principles of distribution can be derived from these purposes.
There are 3 main methods for deciding on punishment.
The first is that punishment should be equal or equivalent to the crime.
The second is that punishment should be in proportion to the harmfulness and
blameworthiness of an offender’s actions.
The third is that punishment should give satisfaction equal to the grievances caused.
[Critique of Retributivism
The above expalanations for deciding on punishment raise a few issues:
The idea of equal or equivalent punishment, however, proves to be impractical. How
can the equivalent of sexual assault be found in any current punishment?
To decide on punishment in terms of satisfaction in accordance with
grievances caused is also questionable. Honderich [1989:34] says that punishment is
not wholly justified and liberilized in terms of the offence, but provides “the contention
that a man’s punishment must provide satisfactions”. However if punishment is not
wholly dependent on the offence, but is in part to do with satisfaction, then it is in part,
consequentialist (and therefore not retributive).
The culpability principle is often used in deciding the punishment of
offenders. However there are large numbers of punishments handed down which do
not obey this principle. Particularly, this is the case where the harmfulness and
blameworthiness of offender’s actions are not proportionate to the punishment.
According to the retributivist explanation of punishment, two offences that have the same
punishment should be fairly similar in terms of the harmfulness and blameworthiness.
Therefore it can be seen that retributivist theories are not adequate to
explain why and how we punish.
2. Utilitarianism
Utilitarianism, as the name suggests and tells, covers all theories that justify the
evil of punishment only when that punishment has some utility. It is therefore forward
looking, and consequentialist in nature, as it holds the belief that, ultimately, the only
morally significant features of an act are the good and bad consequences produced by it.
The word utility has been used to justify punishment in two different ways in
utilitarian writing:
Use: that punishment is only justified when it has some use – that is, preventing further
crime.
Value: that punishment is only justified when it is most conducive to the welfare of
society, that is, the value society gains from the punishment is more than the
disadvantages incurred by the offender.
However most utilitarians agree that not only must punishment have both use and
value, but also that there be no other solution that would deter as effectively with less
distress.
Most utilitarianists agree that there are three ways to reduce crime:
incapacitation, deterrence and reform.
There are 2 main types of prevention: specific and general prevention.
Specific prevention is aimed at the offender him/herself whilst general prevention is
aimed at the public in general.
utilitarian justification of punishment:
Firstly, utilitarianism allows for innocents to be punished. Secondly, the utilitarian
justification of punishment as an investment does not uphold the claim of punishment to
be “something more and other” than burdens such as quarantine, war, etc imposed by the
state.
Utilitarianism as a justification for punishment can be seen to fall under the
category of a Theory of the Good rather than a Theory of the Right.
Critique of Utilitarianism
If utilitarian justifications of punishment were sound, then one would expect to find
certain conditions met by those who are punished. Looking specifically at imprisonment,
one would conclude that the people in our prisons are dangerous or have a long criminal
record (and are therefore in need of capacitation), that the amount of recidivism is low (as
offenders will have been deterred from committing future crimes) and that there will be
programs for rehabilitation and opportunities for reform in place.
Kinds of punishment: Punishments under the IPC may be distributed in the following
heads:-
1. Capital punishment: -puts an immediate end to the life of the offender. Law
Commission in its 35th report recommended that capital punishment should be
retained.
2. Afflictive punishments:- which provide corporal sufferings and create a
temporary effect such as flagellation, compulsory fasting etc.
3. Indelible punishments: -produce a permanent effect upon the body such as
branding and amputation.
4. Ignominious punishments: - expose the offender to the contempt of spectators
and make him to looked upon as unworthy the society of his old friends.
5. Chronic punishments:- most ancient. Object is to eliminate the criminal from
the society by sending them to far off and secluded place like Kala pani in British
rule.
6. Punishment simply restrictive: -impose restrictions on the offenders viz.
prohibition to exercise a certain profession or to visit a place.
7. Punishment simply compulsive: oblige a person to do something of which he
wishes to be exempted viz. direction of being present before an officer in a month.
8. Pecuniary punishment: - -depriving the offender of a sum of money or article or
property.
9. Quasi-pecuniary punishment:- depriving the offer of a kind of property
combined with some pecuniary profit.
10. Externment from a locality:- -offenders are externed from the locality. Viz. DP
Act sec. 47 and 48 are in vogue.
Justification of variety in punishments
A single punishment can never have all these qualities. Therefore, it is necessary
to combine them to vary them or to assort them in order to fid the composition of our
need.
