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 rightous 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 supermacy 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 prestigeous 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 These concessions were, however, withdrawn in subsequent years of British rule in India.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 organised 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 modem techniques of bundling the offender have proved to be a great success inasmuch 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 ‘hoðå’ that he is going to be trusted by the society after his release from the institution.
Modem 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 favourably 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 individualised 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 maneavouring things in their favour. Mild punishment or no punishment in such cases undermines the effectiveness of punishment as a measure of crime control mechanism.