Institute of Punishment in the Indian Penal Code of 1860: the Penological Theories

Abstract

The historical experience of India in search of its own concept of punishment is unique. It was greatly influenced by the countrys colonial past and the Anglo-Saxon legal culture as well as the philosophical, religious, ethno-linguistic, caste, tribal and other factors. The Indian Penal Code of 1860 uses an original penological construct and a system of punishments. It was influenced by the historical and theoretical factors described in this article, by criminal policy in British India and by its post-colonial development. The countrys penological discourse, influenced by the criminal law doctrine of the metropolitan state, has two distinct features. Firstly, it is the diversity of types of punishment and judges discretion in choosing them to individualize liability. Secondly, the humanitarian orientation of the institute of punishment and the reduction in the number of crimes punishable by death penalty. English lawyer Th.B. Macaulay, the creator of the Indian Penal Code of 1860, considered general prevention, or deterrence, to be the main goal of punishment, while specific prevention through the physical isolation of the criminal and his correction was viewed as a complimentary goal. It was important for the colonial criminal policy to obtain tangible results from the penological theory and the practices of punishment in order to suppress the local ritual crimes (cult «thuggism») and traditional ritual sacrifices (sati ritual). After a large-scale sepoy rebellion and the spread of dacoity crimes, the repressive functions of punishment began to prevail over other penological theories. The so-called «white terror» was commonly used against political opponents fighting for religious freedoms and independence of colonial India. Modern India is a good example of the controversial experience of the search for the effective criminal-penological theories that is a considerable addition to the classic (westernized) criminology. The special historical concepts and practices of punishment in the countries of the «global south», including India, are now studied by the new field of «Southern Criminology». The Indian government is promoting a complex criminal-penological approach to counteracting domestic crimes and transnational threats.