Fines as a Punishment in Indian Penal Code, 1860

• Published date: 01 August 2016
• Author: Anupama Sharma
• Date: 01 August 2016
• DOI: 10.1177/1043986216656684
• Subject Matter: Articles

Journal of Contemporary Criminal Justice

2016, Vol. 32(3) 243 –263

© The Author(s) 2016

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DOI: 10.1177/1043986216656684

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Article

Fines as a Punishment in

Indian Penal Code, 1860:

A Jurisprudential Failure

or Commodification of an

Offense?

Anupama Sharma1

Abstract

The paper discusses the role of punishment in a criminal justice system by elaborating

its functions. It focusses mainly on monetary sanctions (fine) as a type of punishment

under the criminal law and analyzes its efficiency on the basis of the punishment

theories. With specific reference to the Indian Penal Code, 1860 the paper

categorizes the placement of monetary sanctions in the statute into three variants:

where the amount of sanction is mentioned in the provision, where the amount of

fine is not mentioned in the provision and where monetary sanctions stand as an

alternative to imprisonment in the provision. The paper critiques the third variant

as a commodification of offence and provides suggestions to update the statute to

enable the efficiency of monetary sanctions as a type of punishment in criminal law.

Keywords

theories of punishment, monetary sanctions, commodification of offence

Introduction

Under the criminal justice system, punishment forms an essential part. It is a form of

expression of social condemnation of crime by collective conscience as stated by

Durkheim (Spitzer, 1975). It finds its basis under moral anger and disgust which for-

mulate the social theory of punishment (Harris, Evans, & Beckett, 2011). The article

1O. P. Jindal Global University, Sonipat, India

Corresponding Author:

Anupama Sharma, O. P. Jindal Global University, Sector 35, Sonipat, Haryana 131001, India.

Email: anupamasharma07@outlook.com

656684CCJXXX10.1177/1043986216656684Journal of Contemporary Criminal JusticeSharma

research-article2016

244 Journal of Contemporary Criminal Justice 32(3)

deals with the role of punishment under criminal law and the goals it seeks to achieve

within the context of India. The purpose and goals of the punishment can be traced

through the various theories of punishment which can also be used as a basis to ana-

lyze the viability of the punishments as they exist in criminal justice system. The

article primarily focuses on monetary sanctions (i.e., fine) as a type of punishment

under criminal law and how far it is able to achieve the penological goals. Moreover,

in the third part of the article, with specific reference to Indian criminal justice system,

the article evaluates the positioning of fine as a punishment in the Indian Penal Code

(IPC) and critically evaluates how the dilapidated state of fines in IPC can lead to the

commodification of the offenses. The methodology adopted is literature and statutory

review for theoretical critique.

Crime and Punishment

Punishment is a socio-legal concept. It derives its goals and purpose from sociological

perspective and gains its legitimate recognition and enforceability through a legal

framework. In any given society, there are a set of norms conceived through the social

set up which are later recognized by laws and converted into statutory laws which

require an institution of regulation to protect the compliance of these socio-legally

established norms (Spohn, 2009). Punishment is not considered as a corollary of law

but of law breaking (Mabbott, 1939). It is here, when the concept of punishment seeks

to protect and regulate the institution of norms and ensures sanctioning in case of any

transgression from it by imposing unpleasant consequences on the offender

(Greenawalt, 1983). It is considered as a medium of expression of social values as well

as helps to meet penological ends (Ashworth, 2012). This unpleasant consequence

reflects various purposes and contexts which can be identified as goals of punishment

which it exhibits and seeks to achieve.

According to H. L. A. Hart (1978), there are certain essential elements of a punish-

ment: It should inflict some amount of pain and unpleasant consequences to the

offender, it should relate to the offense that the offender has committed, it should be a

response for breaking the social norms, and it should be administered by an authority

under the legal framework (Spohn, 2009). There have been lot of critiques of this defi-

nition as it fails to acknowledge the features which distinguish between the punish-

ment given for civil wrong vis-à-vis criminal wrong which may be different in nature

and gravity depending upon the nature of the wrong committed with former being

compensatory in nature whereas latter being punitive. However, in the context of cur-

rent research, the definition provides as a good starting point to understand the mean-

ing of punishment (Sverdlik, 1988).

The types and forms of punishment are varied and have been changing with the

development of society (Gupta, 2007). In the earlier times, few punishments exhibited

extreme brutality and was later condemned as they transgressed humanitarian grounds.

Earlier death as a punishment was allowed for even minor offenses, but gradually

other forms of punishments such as imprisonment, community work, and fines were

considered apt for achieving the purposes of punishment with specific emphasis that it