Sunday, January 13, 2019

What Is The Difference Between Sanction And Punishment?



                              Sanction


Sanction means penalty intended to mantain or restore respect for law or authority. It consists in the application of the physical force of the State for the enforcement of law. 

According to Pollock, sanction is the appointed consequences of disobedience'.

Austin defines sanction as the eventual or conditional evil' : and to him, sanction and duty were correlative terms, the sanction being that which ought to be done to a person who breaks a duty. 

Kelsen observes that sanction applies only in the event of a certain pattern of conduct not being observed and the sanction is what the law prescribes. The sanction is applied, not just because a person has done something, but because he has done it when he ought not to have done so.

Sanction differs from liability. Sanction is evil incurred or to be incurred by disobedience of the law whereas liability is exposedness to the sanction of law. Liability is incurred by the commission of a wrong and consists in those things which a person must do or suffer for the violation of his duty whereas sanction is applied because he has done something when he ought not to have done so.

Both sanction and punishment mean an evil inflicted upon a wrong-doer, such as bodily pain, imprisonment etc. through the physical force of the State for the enforcement of law. Punishments are pre-eminently the sanctions of criminal law and they are ultimate sanctions. However, the term 'sanction' is wider than punishment. Sanctions of civil matters such as restitution or compensations are not punishments but they are sanctions. Hence a sanction is not necessarily a punishment or penalty. 


Classification of Sanctions


Civil and Criminal Sanctions

Sanctions may be classified as religious, moral and legal. The sanctions imposed by the law of God or the threatenings of evils to flow from Divine anger are religious and they are social sanctions and they differ basing on the religion and they are imposed by religious heads on the followers of those sects. The sanctions of positive morality are moral. These sanctions too are not imposed by the State. The sanctions of positive law are legal or political sanctions and they are imposed by the State. Legal sanctions may be divided into civil (or private) sanctions and criminal (or public) sanctions.

The civil sanctions consist of - 
  • Damages (liquidated or unliquidated and nominal, vindictive or special);
  • Costs, whereby the unsuccessful party to a litigation is required to reimburse the successful one the expenses incurred by him in vindicating his rights; 
  • Restitution of property;
  • Special performance of a contract; and 
  • Injunction which may be either prohibitory, when it forbids the defendant from doing something, or mandatory when it requires the defendant to do something for the plaintiff.


The criminal sanctions are of - 
  • Punishment (including capital punishment); 
  • Deportation ; 
  • Imprisonment ; 
  • Corporeal punishment
  • Fine ; and 
  • Deprivation of civil rights such as voting or holding office


                             Punishments


Among the punishments for the crimes, the severest punishment is capital punishment. A great controversy has been going on for and against capital punishment.

Capital Punishment (Death Sentence) : In ancient times, and even in the middle ages, it was thought that the best way of protecting society from serious or dangerous types of offences was that of sentencing them to death. There has been a steady decrease in the number of offences for which the penalty is death.

At the time of George III there were 220 capital offences. In the reign of Henry VIIl, many thieves and vagabonds were hanged. And in the reign of Queen Elizabeth, the punishment for forgery and coining was torture, maiming and forfeiture. In 1634, forgery was punishable with death.

In 1810, when a bill was brought forward in England to abolish the death penalty for the crime of stealing in a shop to the value of 5 shilling many members of the House of Lords pleaded against bill by saying that if the bill is passed, we shall not know where we stand. We shall not know whether we are on our heads or on our feet. In spite of such gloomy prognostications, capital punishment has been disused without any untoward effects in the case of many offences.

(A) Arguments in Favour of Retention of Death Penalty:

  • Death sentence has a great deterrent effect upon potential criminals than any penalty because it is presumably the most frightening.
  • Death is the most effective preventive punishment. Dangerous members of society are thereby permanently eliminated.
  • If death penalty is abolished, it would entail a considerable expense upon society to maintain incorrigible offenders for the duration of their natural lives. 
  • According to Garofalo, elimination of criminals was a sort of moral war for the good of society.
  • According to Lambroso capial punishment should be good as a threat to habituals and incorrigible.
  • George Ives is of the opinion that the incorrigible or hopeless criminal should be painlessly removed rather than that the state should have to maintain him unnecessarily. 

(B) Arguments for Abolition of Death Sentence:

  • Life is the gift of God. No one, even including state has any right to take away life.
  • Baccaria denounced capital punishment by saying that the state has no right to put an individual to death, because the life of the individual was not surrendered to it as part of the consideration for the social contract.
  • Capital punishment has a demoralising effect upon society. If a person, not quite normal or cultured, takes life in a state of quasi-insanity or in a state of moral imbecility, the law should not ordain the imposing of a penalty which is tantamount to taking life for life taken.
  • The death penalty is the most arbitrary of all punishments and is a serious obstacle in the way of individualization. Its abolition would make more feasible the individualization of the penal treatment of murderers.
  • The death penalty is a survival of the lex talionis, the taking of life for a life. The Mosaic law, Life shall go for life, eye for eye, tooth for tooth, hand for hand, foot for foot' is unsuited for the civilised societies and so the death sentence should be disused.
  • Owing to the fallibility of human justice, irredeemable errors may be committed if the death penalty is inflicted. The judicial mistakes cannot be remedied after execution when the mistake comes to light afterwards. 


(C) Movement for Abolition of Death Sentence in India:


Homicide, in India, has been found to be due mainly to rage degenerating vengeful emotion. Most of the homicides are without premeditation. Reformists denounce law which seek to punish a person who does an act in question, as it springs not from his volition but from reasons which are beyond his control. They are of the view that crime like all other diseases should properly be diagnosed and treated scientifically. Punishment must not be regarded as the end but only means to an end, the end brings the
reclamation of the criminal to useful citizenship.
Justice Bhagwati has given a minority opinion in the case Bachan Singh v. State of Punjab, 1980 stating that death penalty under Section 302 of the IPC read with the sentencing procedure under Section 354(3) of the Criminal Procedure Code, 1973 was unconstitutional and void since it violated Articles 14 and 21 of the Constitution.

Moreover under the Indian Penal Code capital punishment is awarded for the offences of murder, dacoity accompanied with murder, waging war against the Government, etc. These offences are so heinous that for them the death sentence is absolutely necessary. Any sentence less than this wil be inadequate for them. Again this punishment is given to the criminals only after a very thorough enquiry. Benefit of doubt is always given to criminals. Anybody coming within the provisions of 'General Exceptions' is at once left. Capital punishment in that view may be regarded as an absolute necessary.


In 1962, the Govenment of India referred the matter of abolition of death sentence to the Indian Law Commission. The Law Commission recommended that the issue of abolition or retention has to be decided on a balancing of the various arguments for and against retention. No single argument for abolition or retention can decide the issue. In arriving at any conclusion on the subject, the need for protecting society in general and individual human being must be borne in mind.

The law Commission says that having regard to the conditions in India, to the variety of the social upbringing of its inhabitants the disparity in the level of morality and education in the country, to the vastness of its area, to the diversity of its population and to the paramount need for maintaining law and order in the country at the present juncture, India cannot risk the experiment of abolition of capital punishment. It recommended that children below 18 years of age should not be sentenced to death. A provision to that effect can be conveniently inserted in the Indian Penal Code (Section 55-B). The movement to abolish death sentence is, still, going on with the support of eminent jurists and intellectuals in India.





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