Society prepares the crime and the criminal commits it. In a country where crime rates are greater than literacy rates, it is essential to bring in stricter and more stringent laws to ensure reduction of crimes. This paper highlights the meaning of punishment and its scope under Section 53 of the Indian Penal Code. The author also brings out the importance of the concept of the Three Strikes Law, discusses its need and its possible impact on the Indian Criminal Justice.

Punishment is defined as:

some pain or penalty warranted by law, inflicted on an individual, for the commission of a crime or misdemeanour, or for the omission of the performance of an act required by law, by the judgment and command of some lawful court.[1]

It is a sanction imposed on the accused for the infringement of the set rules and norms of the society. The consequences of punishment result not only in physical pain but also in mental suffering, loss of freedom, loss of reputation and sometimes loss of property as well.

There are totally 5 theories of Punishment:

• Deterrent Theory:

  it prevents the wrongdoer from committing any offence in the future in addition, sets him as an example to the others who have criminal tendencies. This theory is based on the assumption that people regulate their behavior by calculating pleasure and pain. Inhuman punishments are inflicted even for minor offences. This practice is prevalent in a few societies even today.
   

• Retributive theory:

  (tit for tat or an eye for an eye) it is solely based on vengeance or revenge. Thus, the pleasure derived by the wrongdoer from the crime is outweighed by a way of punishment that inflicts the same pain on the offender. This theory was criticized on the grounds that this type of punishment will not prevent the wrongdoer from committing more crimes and the main objective of punishment is for the wrongdoer to feel guilty. This was a practice prevalent in ancient societies.
   

• Preventive theory:

  it is based on the concept - ‘Prevention is better than cure'. The object of this is to make the threat generally known rather than putting it occasionally into execution. This theory makes punishment realistic and humane.
   

• Reformative theory:

  here the punishment seeks to bring about a change in the attitude of the offender. This theory suggests that punishment imposed should be in such a way that it rehabilitates the offenders. This theory condemns all corporal punishments. Major emphasis is on the rehabilitation of offenders into law abiding citizens.
   

• Socialistic theory:

  the punishment always carries with itself a stigma, which cannot be cleansed by an offender. The society looks at him as an ex-convict even if he is totally reformed while serving his sentence. Unless the society accepts him as a reformed person, whatever reformation he went through while serving his sentence, becomes ineffective.

During the 1990's, the Unites States of America witnessed a large spike in their crime rates. The Three Strikes Law or the ‘Offender Laws' was first introduced in America on March 7th 1994 and is a part of the American Justice System Department in order to reduce the crime rates in the country.

Before this law came into force, there were separate individual laws in each state that governed the punishments for repeat offenders. The state of Michigan enacted one of the harshest laws wherein the law required imprisonment for life or a life sentence for those who violate the liquor laws for the fourth time.

The State of California was the first State to introduce this law in 1994 after the gruesome murders of Polly Klass and Kimberly Reynolds. The object of this law is adopted from a rule in the game of Baseball wherein the batter or the hitter against whom three strikes are recorded ‘strikes out'. For a person to be charged under this law, he or she requires to have committed a felony and two or more serious convictions to serve a life imprisonment. In short, a person gets convicted for a de facto life sentence if he/she has committed three serious felonies. Felony in this context means serious offences such as robbery, kidnapping, use of explosive devices illegally, sexual offences etc.

However, on November 6th 2012, the Three Strikes Reform Act (Proposition 36) came into force whereby it gave an opportunity for those inmates who were currently serving life sentences in prison for minor third strike crimes to file a petition in court for a reduced sentence. To win a reduced sentence, the court must be satisfied that the inmate does not pose a threat to public welfare and security.

Scope Of Section 53 Of The Indian Penal Code

The Indian system of sentencing and punishment is based on two objects; prevention of crime/reduction in crime rates and reformation of offenders. Since it is for the courts to impose a sentence appropriate to the crime and the criminal having regard to the objects of punishment and the constitutional rights of prisoners, the courts have been given ample discretion in sentencing.

Section 53 of the Indian Penal Code (IPC) states the mode of punishments to which the offenders are liable under this provision:

• death sentence,
• life imprisonment,
• imprisonment for a lesser period as rigorous or simple,
• or fine
• or combination of imprisonment with fine.

This code has been criticized on the grounds that it is retributive and punitive in character; that it is not reformative nor supportive of the modern trends in criminology.

It is the discretion of the Trial Court to award appropriate sentences. Once the prosecution has convinced the Court by establishing the guilt of the accused beyond any doubt, it is necessary to distinguish between the nature of proof and the circumstances in which the offence has been committed. It is important to note that the nature of proof has no relation to the punishment to be imposed.

The Court has to consider mitigating factors such as:

• offence committed unintentionally in the heat of passion
• provocation
• age of accused
• any general exceptions are applicable
• whether any provisos under section 300 of the Indian Penal Code are applicable when the accused is guilty of murder.

In the case of Surja Ram V. State of Rajasthan[2], it has been held that:
‘For deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner.

It was established in Dennis Lounde Mcoautha Vs. State of California[3], that:
‘No formula of a full proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder. In the absence of any full proof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.'

At the same time, the punishment awarded should neither be excessively harsh nor ridiculously low.[4]

Suggestions
The most heinous crimes in India are of sexual offences. The laws that govern these cases are strict in its own sense, but on interpretation shows many loopholes. Although there are offences for which death penalty and imprisonment for life are the punishments, there are other offences for which a term of imprisonment or fine or both, are the punishments. In case of the latter, there are chances of offenders repeating the offence. Therefore, the law has to be stringent.

In the case of Dhananjoy Chaterjee v. State of West Bengal[5], it was stated that, ‘In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the courts a subject of concern. To-day there are admitted disparities.

Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime, a shockingly large number even go unpunished thereby encouraging the criminal and, in the ultimate, making of justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence, by the object of sentencing should be see that the crime should not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.

Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment benefitting the crime so that the courts reflect public adherence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while imposition of appropriate punishment.'
The Three Strikes law was introduced to reduce the crime rate in America, which, according to statistics, did reduce the crime rate in the country.[6]

The above graphs represent the crime rates from 1952 to 2002. It clearly shows that the crime rates were on a rise and the implementation of the Three Strikes Law in 1994 has reduced the crime rates. The crime rate has declined by 43 percent since the implementation of the law.

The author believes that the same could be the case if the essence of the law is adopted in India.

The constitutional validity of the above law can be explained in a three-fold way:

• Whether there is a creation of a new category:
  in the case of Union of India v. V Sriharan[7] , it was held that:
  there is no statutory provision prescribing the extent of punishment provided in the Penal Code and that, the Court has not carved out a new punishment. life imprisonment means imprisonment for the rest of the life or the remainder of the convict's life.
  Therefore, there is no creation of a new category of punishment.
   
• Whether it violates article 21:
  it does not violate article 21. An individual's (especially a convicted felon, who has repeated a crime) fundamental right outweighs the security of the country and the interest of the public. That being said, this punishment will be governed by the CrPC.
   
• Whether it may hinder any constitutional remedy provided under Article 72 and Article 161:
  any person punished with imprisonment for the remainder of his life would be entitled to claim remission, commutation, etc. Hence there is no hinderance of any constitutional remedy.

The doctrine of proportionality states that a punishment should not be greatly disproportionate to the crime committed and is implicit in Arts. 14, 19 and 21. It was first adopted by the Supreme Court in the case of Om Kumar v. Union of India [8]in which it was observed that this principle has been used by the courts since 1950's, although in a restrictive way.

The Indian Criminal Jurisprudence can adopt this concept of the three strikes law, wherein the punishments for repeat offenders should be voluminously increased. The same punishment should not be given for a person who has repeated the offence for the third time.

It is to be noted that the punishment given should based on the offence that has been committed. In this way, Article 14 of the Constitution that grants equality to all its citizens, is not violated.

Conclusion
This gives a space for the Indian Judiciary to enhance sentencing. Classic example of why this law is required is the Nirbhaya Gang rape case which affected the whole country and it still questions the existence of the Constitution that guarantees protection of its citizens but failed at it miserably.

In a country where animals are safer than women, the Government must realize what the need of the hour is and must take measures to implement stringent laws to stop crime. If implemented, the main aim of this law will be to eradicate such criminal who don't fear the law. Such is the promise of this law; un-biased, fair, and believes in prompt justice for the victim.

End-Notes:

1. https://www.upcounsel.com/legal-def-punishment
2. A.I.R 1997 S.C. 18
3. (402) U.S. 183 L. Ed. II 711)
4. Deo Narain Mandal V. State of Uttar Pradesh, A.I.R. 2004 S.C. 5150
5. 1994 S.C.C. 2
6. https://lao.ca.gov/2005/3_strikes/3_strikes_102005.htm
7. 2016 7 S.C.C 1
8. A.I.R. 2000 S.C. 3689