This article is written by Sahil Aggarwal, currently pursuing B.A.LLB. (Hons) from NALSAR University of Law, Hyderabad. This article explores the development of prisons in the Indian context and simultaneously overviews the increasing sophistication in penal systems.
Table of Contents
Introduction
The origin of the idea of punishment, it has been observed, coincides with the origin of the social life of an individual. But this is unverifiable for we can’t go that far in the origin or can’t with any exceptional certainty, claim its truth. The idea of ‘punishment’ itself is huddled with many definitions, but, so insistently has its relation with crime been asserted that we tend to disregard that the authority of society in granting such suffering plays a major role. This is to say that a society may diminish certain actions to call them a crime, but those actions may not be categorized as crime in every society, similarly, the punishments inflicted by a society have their own nature and history. In this article, keeping in mind this point, we shall explore the evolution of punishment before and after the imprisonment, only in the context of India. Thus, the article first provides an account of penal practices before British Raj, and then after British Raj. It is important to note here that the modern conception of imprisonment was brought by Britishers in India, and after that it saw a significant change and became the most common kind of punishment, not only in India, but throughout the world. But still, even the basis of granting punishment varies in different societies, let us discuss the development of punishments in India.
Ancient India and penal practices
According to ancient Indian thought, the ‘danda’ (a staff or scepter) was a symbol of the ability to inflict harm. It was associated with the power of the king, justified by its use for the practice of justice and governance. This is usually translated as ‘punishment’. Within Dharmashastra, danda was the ultimate worldly means of enforcing the norms of Dharma. The king was hailed as the ultimate bearer of justice and was vested with the complete authority to punish the offender. Interestingly, the law-givers of the time spoke in favor of just punishment. For instance, Kamandaka, one of the early ancient scholars, repeated the idea of Manu and Kautilya when he said that Danda should neither be too serious nor too mild but should be just in accordance with the kind of offence committed. Narada remarked that the nature of the crime, its time and place should be carefully considered and the ability and motive of the offender should be thoroughly examined before inflicting the punishment.
However, various law-givers classified punishments differently. Manu, Yajnavalkya, and Brahaspati referred to four types of punishments, like:
- Gentle admonition
- Harsh reproof
- Fine
- Corporal punishment.
On the other hand, Kamandaka divided punishment into three kinds, namely
- Execution (vadha)
- Fine and
- Corporal punishments
Let us briefly discuss the specific punishments generally prescribed for particular times.
- To start with theft, the lawgivers ordained that a theft may be punishable from nominal fines to even the death penalty according to the gravity of the offence. For instance, the punishment for stealing petty articles like woods, cane, vegetables etc. Narada prescribed that the offence may be punishable by a fine of five times the value of the article stolen. On the other hand, Brahaspati held the view that for stealing grass, wood, flowers, fruits etc., the criminal should have his hand cut off. However, Narada prescribed that Brahmana had the right to collect fuel, flowers, etc. without being considered a thief. For theft of gold and other precious metals, gems and fine clothes, the punishment was either corporal or death. Moreover, for the theft by a brahman, Katyayan prescribed that he must pay eight times the fine to be imposed upon a sudra. Moreover, they were banished, branded and shaved. Remarkably, the accomplices and accessories were also punished in those times.
- Like open theft, open rogues were also punished severely. Forgers, adulterers, counterfeiters of coins, fabricators of weights and measures, receivers of bribes, all were prescribed punishment by the lawgivers. From the above observations, it is evident that the criminal justice system was having multifarious situations with a view to providing proper punishment to the wrongdoer.
Interestingly, the types of punishments also included imprisonments in those times, however it was significantly different from our modern-day conception. Manu observed that the prisons must be built near a high road from where the sufferings of the offenders could be seen. Thus, prisons were meant for public dishonor and even to induce deterrence in society. Another point that is relevant to be noted here is that, in ancient Hindu laws, the caste played a major role in awarding punishment to the guilty. In that, mostly the highest caste, or the Brahmans were the most favorably situated, while the Shudras were penalized relatively strictly. Thus, the major punishments of those times were fairly articulated and were classified in the categories. One also finds the inscriptions and writings that include Mutilation, whipping, branding, banishing, or confiscation of properties as subcategories in the ancient Indian penal practices.
Medieval India and penal practices
Medieval India witnessed the prominence of Muslim law which had a significant impact on the penal practices of the time. However, from the slave dynasty to Mughal dynasty, every ruler was confronted with a challenge to rule a large mass of non-Muslim populace. From the rule of Sher Shah, we witnessed a significant change in the attitudes of rulers as they recognized the issue and allowed religious liberty to Hindus for following their own laws. In any matter, civil or criminal, the village panchayat presided over the proceedings and executed the judgment, but the parties were free to appeal in front of the Qazi court. Qazi was a judicial officer who was supposed to try and decide the cases, among many other duties.
The scholars have provided that the Islamic principle of punishment mainly divided the punishments into three categories, namely Hadd, Qisas, and Tazib.
Hadd
Hadd was the punishment of which the limits were provided under Quran and Hadis. For instance, an adulterer was punished by stoning, on the other hand, Apostasy or Ittidad was punishable with death. Theft was punished with mutilation of the right hand. Moreover, the punishment prescribed for both men and women were similar when situated in similar circumstances.
Qisas
Qisas, which literally means ‘retaliation’ was the punishment which although provided by law, yet it could be remitted by the person against whom the offence was committed, and in the case of a murdered person, his or her relative had such right. Qisas is similar to ‘lex talionis’ that means an eye for an eye or tooth for a tooth in general phrases used.
Tazib
Tazib is a punishment which was left on the discretion of Qazi. Other punishments included Siyasa which meant exemplary punishment and Diyut which referred to blood money for compensation in cases of offences like homicide. The latter was usually provided as an alternative to Qisas.
It is important to note here that Abul Fazal, Minister of Akbar, provided in his preface to ‘Ain-i-Akbari’ the general principles of punishment in which he takes into account the personal character of the offender. It is provided that Akbar followed the principles of punishment based on due discrimination according to the character and rank of the offender, which was not provided under Quranic law. Moreover, he also provided an interpretation that Mughal rulers may also award imprisonment to the offenders. Thus, major kinds of punishments in the Mughal period included fines and confiscations, or forfeiture of rank and title, subjection to humiliation by other methods, imprisonment and internment, banishment, mutilation, execution, etc. For the purpose of imprisonment, there was a distinction made for the aristocratic offenders and criminals of normal status, thus they were incarcerated in separate prisons. Forts and central prisons of the capital towns were used as jails. For instance, the fort of Gwalior was mainly used for nobles and high officials who were convicted for offences.
During the late medieval period, the Christian church had granted asylum and sanctuary to fugitives and criminals. These canon courts were forbidden to shed blood, therefore, they adopted Christian theme of purification through suffering. The wrongdoers were subjected to reclusion and cellular confinement. In 1600, the Portuguese constructed the church prison at Goa, which had nearly two hundred separate cells.
However, it is important to mention that the sophistication of punishment of imprisonment was not sophisticated in these times. The scholars provide that the entire period of imprisonment in those times was not defined by a definite code or rule, thus it was highly based on the discretion of the judge or qazi. Moreover, the punishment of imprisonment was mostly administered to government servants, high as well as low, who were guilty of breach of trust, fraud, oppression or treason, whereas common offenders were kept in the prisons during the pendency of their trial. However, the trend of imprisonment as a common form of punishment was about to get significantly changed with the advent of British rule.
Imprisonment as a common punishment
History of prison
As we saw earlier, imprisonment was found in the ancient as well as medieval centuries too, however, it was significantly different from the conception of imprisonment. The differences include, firstly, that there was no sophisticated grounds on or duration for which the punishment of imprisonment was given to the convict, rather it was mostly based on the discretion of the judge to grant this imprisonment. Secondly, in the ancient Hindu law, the deterrence being the main rationale, the conception of prison in front of the eyes of society was given, which is indeed distinct from the solitary confinements that are granted nowadays. Moreover, and significantly, punishments were decided upon the characteristics of the person such as caste, gender, status etc., however, this was all to go under change with the advent of British rule.
Interestingly, London is known as the birthplace of modern conception of imprisonment. The most important purpose of granting imprisonment in the West, similar to India, was the confinement of a person within prison not to punish him but was a means of keeping the perpetrator of a crime detained until the actual punishment could be carried out. Jeremy Bentham was firmly against the death penalty, and thus he created the concept of ‘Panonptical prison’ that would be used to hold in prisoners as a form of punishment Bentham drew up plans for a facility in which prisoners would remain to the extended periods of time. His design was intended to ensure that the prisoners locked up inside the architecture could never know if they were being watched by guards or not, which he felt would allow the authorities to save money. Subsequently, the idea of extended punishment found its influence in multiple European powers that extended it to almost every country.
Indian history and prison
In 1787, just four years after the Britishers gained significant control in Eastern India, Indian prisoners were incarcerated in Bencoolen, in southwest Sumatra. The prisoners at Bencoolen were used in jungle clearing and road building. By 1836, India had a large number of jails capable of holding more than 70,000 prisoners. The committees for prison reform in 1835, 1864, and in 1877, rejected the concept of imprisonment and made changes in the direction toward professional corrections. However, this could not dissolve the idea and in 1846, the first central prison was constructed in Agra.
However, India being a British colony also saw the various kinds of punishments such as the treadmill, floggings, and transportation which were relatively more prominent than imprisonment. However, a significant change came in 1888, when the recommendation for prison reform by the fourth Jail Commission were accepted and in 1894 the Prisons Act was laid down which substantialized the idea of contemporary prison for the administration of India. Another committee subsequently contributed to the groundwork of modern corrections. Around 1920, the Indian jails committee named reformation and rehabilitation of inmates as major objectives. In 1940, the first jail training school for wardens and officers was established in India. In the 1940s, labor was becoming less penal in character, allowing individuals to learn crafts like carpentry, painting, tinning, masonry and construction, etc.
After 1947, the government started emphasizing the training of correctional staff. Subsequently, in 1957-59, the Eighth Conference of the Inspectors General of Prisons and the Indian jail committee prepared the first model prison manual. The manual established scientific guidelines for the correctional treatment of various classes of offenders. This marked one more significant development in general acceptability of imprisonment as the most common form of imprisonment. However, there were some alternatives as well in Indian Penal Code and other specific legislations. For instance, capital Punishment, banishment, levying of penalty, forfeiture of property, etc. However, banishment was initially there in IPC and later it was removed from it. ‘Transportation’ as punishment was finally abolished in 1955. Not only the way in which the capital punishment was given, but also with subsequent development of independent Indian penal jurisprudence, the principle of rarest of rare case became the modern requirement of granting execution. Thus, the major forms of punishments which ancient and medieval India performed got significantly changed in their nature or were abolished by the time India gained independence.
Conclusion
The foregoing account of development of the penal system in Indian context reaffirms the difficulty of defining ‘punishment’ as an objective concept. It is simply because throughout Indian penal history, we have witnessed the alteration in the nature, characteristics, and even substitution of the punishment. Moreover, the purpose of granting punishment which we presently distinguish mostly in terms of rehabilitative, retributive, utilitarian, reformative, etc. were also being used, however inconsistently. Nevertheless, the concept of ‘prison’ gained significant popularity with the advent of colonisation by the European powers throughout the world. But this did not dismiss the alternative to punishment in the form of penalty, capital punishment or forfeiture of property.
References
[1] https://babel.hathitrust.org/cgi/pt?id=coo1.ark:/13960/t5n87tq6q&view=1up&seq=14
[2] https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=7606&context=ylj
[3]https://shodhganga.inflibnet.ac.in/bitstream/10603/128260/13/07_chapter%202.pdf
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