CHAPTER-IV

THEORIES OF
PUNISHMENT
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CHAPTER-IV

THEORIES OF PUNISHMENT

Punishment is a means of social control. H.L.A. Hart with [Link]

and Professor Flew has defined punishment in terms of five elements:

(i) It must involve pain or other consequences normally considered

unpleasant.

(ii) It must be for an offence against legal rules.

(iii) It must be an actual or supposed offender for his offence.

(iv) It must be intentionally administered by human beings other than

the offender.

(v) It must be imposed and administered by an authority constituted by

a legal system against which the offence is committed.

According to Greenhut, there, three components must convince the

offender that crime does not pay, second, after punishment the offender must

have a fair chance of a fresh start. And third, “the state which claims the

right of punishment must uphold superior values which the (offender) can

reasonably be expected to acknowledge. In view of Dr.W.C. Reckless, “ It

is the redress that the Commonwealth takes against an offending member.

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Punishment according to West Mark, is limited to “such suffering as is

inflicted upon the offender in a definite way by or in the name of the society

of which he is a permanent or temporary member.

The concept of punishment is that of inflicting some sort of pain on

the offender for his violation of law. This is an instrument of public justice.

To illustrate, if a thief is prosecuted and brought before a Court, his case

heard, punishment awarded by the Court and finally executed by the State,

then this becomes punishment in legal sense. It will not be a punishment in

law, if father beats his son for committing a theft in his house or killing of

Nexalites by the State for their anti national activities without prosecuting

them.

Sutherland and Cressey have mentioned two essential ideas while

defining the concept of punishment:

(a) It is inflicted by the group in its corporate capacity upon one who is

regarded as a member of the same group. War is not punishment for

in war the action is directed against foreigners. The loss of status

which often follows crime is not punishment, except in so far as it is

administered in measure by the group in its corporate capacity.

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(b) Punishment involves pain or suffering produced by design and

justified by some value that the suffering is assumed to have. If the

pain or suffering is merely accidental, to be avoided, if possible, it is

not punishment. A surgical operation performed on a prisoner to

correct a physical defect is not punishment, for the pain is not

regarded as valuable or desirable.

The idea of involving pain or suffering in awarding the punishment

has been modified in view of the modern reformatory methods introduced

recently in dealing with the criminals. For instance, probation, parole or

pardon is treated as substitute for the punishment. Even in the prison, the

basic idea is not to inflict pain or suffering but to teach the convict the

methods and techniques including technical training, to make the prisoner a

law abiding citizen.

Though the prison authorities are not required to inflict physical or

bodily pain on the prisoners unless circumstances so warranted, but if pain is

used in broader, hedonistic sense, including loss of freedom, punishment,

discomfort, loss of life, loss of property, loss of reputation (public shame), it

would be true that punishment administers some sort of pain to the offender.
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4.1. DESCRIPTION OF PUNISHMENT - CRITICAL ASPECTS

The description of punishment as for the commission of an offence

defined by law may be critically examined. For instance, if a person is

selling adulterated drug without knowing that it is adulterated then it would

be mistaken that he has broken the law and hence was a criminal under the

law. This is a case of strict liability and if one breaks a law unintentionally,

unknowingly even then he is liable to punishment. Vicarious liability is

another example. In ordinary sense the moral justification of punishing a

man is that he deserves it for what he has done. Further, though a person has

not committed the offence, but if there is an indication that the man is one

who is likely to commit an offence in future, he may be detained. These

situation raise a question for consideration in favour of excluding the words

for an offence.

Given this, and the difficulties raised by strict and vicarious liability

and preventive detention, let us describe punishment as simply an authority’s

infliction of a penalty on an offender, and describe an offender to be a man

who has broken a rule, out of intention, or negligence, or a man who has

broken certain rules out of neither, or a man who occupies a certain position

of authority with respect to a rule-breaker in either of the preceding senses.

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There is no need to be more specific about the mentioned positions of

authority, which have to do with cases of vicarious liability.

Definition given by Rawls seems to be a satisfactory one, He states “a

person is said to suffer punishment whenever he is illegally deprived of

some of the normal rights of a citizen on the ground that he has violated a

rule of law, the violation having been established by trial according to the

due process of law, provided that the deprivation is carried out by the

recognized legal authorities of the State, that the rule of law clearly specifies

both the offence and the attached penalty, that the Courts construe statutes

strictly, and that the statute was on the books prior to the time of the

offence”.

More progress has been made in the matter of definition by several

writers Professor Jerome Hall has set out a detailed description of

punishment in the following terms:

“First, punishment is a privation (evil, pain, disvalue). Second, it is

coercive. Third it is inflicted in the name of state; it is “authorized”. Fourth,

punishment presupposes rules, their violation and a more or less formal

determination of that, expressed in a judgment. Fifth, it is inflicted upon an

offender who has committed harm and this presupposes a set of values by
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reference to which both the harm and the punishment are ethically

significant. Sixth, the extent or type of punishment is in some defended way

related to the commission of the harm, and aggravated or mitigated by

reference to the personality of the offender, his motives and temptation.

Hall gives clear norms for the meaning of punishment. But, the

notion of treatment/reformation and general preventive incapacitation fall

outside such definition. The human efforts of many to better the lot of

imprisoned offender are obvious. Added to this is the modem tendency to

place a primary emphasis on probation, with incarceration only as a second

alternative to be pursued in serious and repeated crimes.

4.2. THEORIES OF THE JUSTIFICATION OF PUNISHMENT

All punishments take place within a society’s ordinary legal and penal

systems. In the past single reasons have often been given for the

justification of punishment. One of these reasons is retributivism. Another

reason, historically associated with utilitarianism, is that punishment serve to

deter others from offending i.e., deterrence. A third reason is partly that

punishment or a practice of treatment, secures that fewer offences will be

committed in the future, but not through deterrence. This could be described

as reformative aspect, recommending the moral regeneration of individuals

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as an end itself and also a means to the prevention of crime. These three

reasons, each with variants and complexities, have been known as theories

of the justification of punishment.

4.3. THEORY OF RETRIBUTION:

Retribution is probably the oldest and most ancient justification for

punishment. “You hurt me and I will hurt you” is its literal meaning. One

of the most convincing statements of the retribution theory was given by

Immanuel Kant in the eighteenth century as follows:

Punishment can never be administered merely as a elans for

promoting another good, either with regard to the criminal himself to civil

society, but must in all cases be imposed only because the individual on

whom it is inflicted has committed a crime. For one man ought never to be

dealt with merely as a means subservient to the purpose of another, not be

mixed up with subjects of Real right (i.e. goods or property). Against such

treatment his inborn personality has a right to protect him even although he

may be condemned to loss his civil personality. He must first be found

guilty and punishable, before there can be any thought of drawing from his

punishment any benefit for himself or his fellow citizens.

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The justification of retributive theory of punishment is that the

criminal is to be punished simply because he has committed a crime. It is

initially based on revenge. Revenge by whom? The victim cannot take the

law into his own hands in the modem democratic set up. We are to observe

that the Lex Talionis: ‘an eye for an eye, a tooth for a tooth’ cannot be a

justification for punishment in the modem society. Punishment is regulated

partly by the legislators by fixing scale of penalties and partly by Judges and

Magistrates by awarding penalties after lawful consideration of the well

being of the offender and his family or of society as a whole, within the

scale fixed by the legislators.

Retributive theory intends that a man deserves punishment because he

has acted wrongfully. What retributionists have insisted upon is that no man

can be punished unless he is guilty, that is, unless he has broken the law.

More precisely, (1) he performed an action of a certain culpability; (2) that

the penalty will give satisfactions equivalent to the grievance caused by his

action, (3) that similar ones have been and will be imposed on similar

offenders, (4) that he was responsible for his action and performed it with a

knowledge of possible consequences according to a penalty system and (5)

that unlike non-offenders, he has gained satisfactions attendant on the

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commission of an offence. As it stands, it is worth consideration as a

sufficient argument for punishing a man.

Limitations of the Retribution Theory

However, it may be pointed out, that retributive theory, in the present

correctional context cannot be upheld, as it is, as it suffers from some

limitations. Retribution approach is largely repressive and does not coincide

with the modem humanitarian correctional approach in dealing with the

criminals. Modem penal system has changed in such a way that it cannot

tolerate sanguinary methods of punishment. The abolition of the concept of

physical torture and public punishment in the modem society is an indication

that goes against the retribution theory.

To say in support of retribution theory that a man’s penalty will be

similar to those imposed on offenders who have caused similar grievances is

also not consistent with the modem penal philosophy. To illustrate, “if some

economic benefit is to be distributed to a group of people, some of whom are

very poor and some of whom are not so poor, we are likely to distribute a

large amount of benefits to each of those who are very poor and smaller

amount to others who are not that much poor. Similarly, the fact that some

persons have committed similar offences is not itself a reason for similar
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action because some of them may be young and first offenders, who need a

lenient view of punishment than those who are recidivists though committed

the similar offence.

In modern society, even the fact that punishment gives satisfaction to

victims of offences and others cannot be fully pressed as many crimes are

not reported to the State, if so reported are not registered by the State or if

registered and prosecution is launched a large number of them go

unpunished. Further, some crimes are covered under the insurance scheme

such as insurance of movable and immovable property against theft and fire

and as such the shock of crime is absorbed through these modem methods.

Retributivism, after considering its limitations in modem penal system

can be characterized as on account of the justification of punishment which

looks to the past. In practice deterrence and reformation theories receive

more attention of modem criminologists and penologists. These two

theories are said to look to the future. However, in some circumstances

where deterrence or reformation fail and something must be done to preserve

the law and order in the society, the retribution has its impact as a

justification for punishment.

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4.4. THEORY OF DETERRENCE

Deterrence is usually defined as the preventive effect which actual or

threatened punishment of offenders has upon potential offenders. The

principle of deterrence is of ancient origin and has been prominent

throughout history in systems of punishment. Deterrence, according to Sir

John Salmond is:

“Punishment is before all things deterrent, and the chief end of the law

of crime is to make the evil doer as example and a warning to all who are

like minded with him”.

On the other hand the modern criminologists have frequently

dismissed the deterrence principle as unjustifiable and all types of

punishment as stigma barbarism.

The deterrent effect of a particular type of punishment depend upon

several factors. These are

(1) The social structure and value system under consideration

(2) The particular population in question.

(3) The type of law being upheld.

(4) The form and magnitude of the prescribed penalty.

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(5) The certainty of apprehension and punishment, and

(6) The individual’s knowledge of the law as well as the prescribed

punishment, and his definition of the situation relative to these

factors.

The deterrence theory finds no justification for action in a past

offence, which has more than a certain evidential importance, and it depends

upon consequences of punishment other than the immediate satisfaction

given to victims of offences and others (as in retribution theory). It need not

ignore these satisfactions. It rightly explains them of relatively less value.

What is treated as important factor is that punishment prevents further

offences. By deterrence is meant the use of punishment to prevent others

from committing crimes. To achieve this purpose, the accused is punished

so that he will be an example of warning to those we are thinking to violate

the law. The general assumption is that this will curb the criminal activities

of others in addition to the real offenders. When we talk of deterrence, we

have two aims in view. These are individual deterrence and general

deterrence. Individual deterrence must be distinguished from general

deterrence. The former looking to the individual offender before the court,

the latter considering the deterrence of the public at large, or particular

section of it.
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Punishment is therefore, justified to control individual crime and to

have a deterring effect on other criminals. According to Bentham, general

prevention ought to be the chief end of punishment as it is its real

justification. If we consider an offence which has been committed as an

isolated fact, the like of which would never recur, punishment would be

useless. It would be only adding one evil to another. But when we consider

that an unpunished crime leaves the path of crime open, not only to the same

delinquent but also to all those who may have the same motives and

opportunities for entering upon it, we perceive that punishment inflicted on

the individual becomes a source of security to all. That punishment which

considered in itself appeared base and repugnant to all generous sentiments

is relevant to the first rank of benefits when it is regarded not as an act of

wrath or vengeance against a guilty on unfortunate individual who has given

a way to mischievous inclinations, but as an indispensable sacrifice to the

common safety.

Bentham thus goes on to suggest that punishment may help in control

of crime in three ways: -

1. By making it impossible or difficult for a criminal to commit the

offence again, at least in certain ways:

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2. By deterring both offenders and others;

3. By providing an opportunity for the reforming of offenders.

In this Chapter we shall be concerned with only the first and second

reasons of punishment. It will however, not be misleading, to refer to both

of them as the deterrence theory. However, what is now evident is that

Bentham and other supporters of the deterrence theory considerably under-

estimated the number of offenders whose punishment is unlikely to have an

acceptable deterrent effect.

An unique opportunity for making an evaluation of the deterrent

approach to crime was presented by Danish experience during the second

world war. In 1944, the German occupying forces deported the Danish

police, and for some time the country had only a local guard force invested

with police, authority. There followed an immense rise in the number of

robberies, thefts, frauds etc but no comparable increase in murder or sexual

crimes. While this experience does show that crime is reduced very

considerably by the prospect of detection and presumably punishment, it

suggests that deterrent methods are of less value reducing the incidence of

those crimes in which strong passions or deep psychological problems are

involved.
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One may say, that this is a situation of war time which is one of

behaviour in an abnormal situation. But even then, it may be said that

punishment has a deterrent effect with respect to many offences. It may

deter many potential offenders. Punishment is justified only under certain

conditions, one of which is that it must deter to a certain extent. We then

have the principle that a man’s punishment is morally justified if the

following conditions are satisfied. It does indeed deter and in so doing (1)

causes less distress than would occur if effectively at a cost of less distress.

Punishments which satisfy these conditions have been called economical

deterrents or punishments that deter economically. It is also to be noticed

that punishment must be sufficiently severe to deter effectively. It has

sometimes been true that offenders regarded the penalties for their offences

as like licenses: an unavoidable feature of conduct of a certain kind and not

so undesirable as to be a deterrent. Such penalties, on the view we are

considering, have no justification.

Another point relating to un-justification of the deterrent theory is that

if punishment is justified by deterrence alone one seems committed to the

immorality of punishing the innocent.

This criticism has been attempted to be dismissed on the ground that

the deterrence principle of punishment is about punishment and that it

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attempts to justify this and nothing else. The deterrence theory is based on

the principle that it is that punishment, the imposing of a penalty on a man

who is an offender, is justified if it deters. Where a man known to be wholly

innocent is made to suffer, it will be a case of victimization and the

deterrence principle has nothing to say about victimization.

The consequences of victimization

Victimization should be unjustified. Victimization is prevented by

our system of punishment, which is governed by certain judicial concepts of

fair trial. The Anglo-Saxon jurisprudence applies to our punishment system.

It provides that it is better that 10 guilty persons escape rather than one

innocent person is made to suffer. It further provides that prosecution is to

prove the guilt of the accused beyond reasonable doubt and that the accused

should be presumed innocent until he is found guilty of crime he is charged.

This principle has double effects. People respect the law because they

believe it deals fairly with individuals. This respect would be lessened by a

belief in the existence of victimization. Who can say what the consequences

of such a lesser respect for the law may be?

On the other hand, the maxim, let ten guilty persons escape but let not

an innocent person suffer” did not go altogether without a challenge because

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of the paramount social importance of convicting the guilty. Stephen

thought that the maxim was by no means true in all circumstances. A rule

giving excessive protection to an accused person becomes less defensible as

the criminal law turns to remedial treatment instead of punishment. Why

then this excessive solicitude at the expense of social defence?

Summarizing the entire position Glanville Williams observes:

It is then a question of degree: Some risk of convicting the innocent

must be seen. What this means in terms of burden of proof is that case need

not be proved beyond all doubts. For all these reasons it is true to say with

Viscount Simon, that, a miscarriage ofjustice may arise from the acquittal of

guilty no less than from the conviction of the innocent.” In short our

jurisprudential enthusiasm for presumed innocence must be moderated by

the pragmatic need to make criminal justice potent and realistic. A balance

has to be struck between choosing chance possibilities as good enough to set

the delinquent free and chopping the logic of preponderant probability to

punish marginal innocents.

Dealing with the question of wrongful acquittals and convictions, the

Supreme Court in Kali Ram v. State of Himachal Pradesh observed:

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It is no doubt true that wrongful acquittals are undesirable and shake

the confidence of the people in the judicial system, much worse, however, in

the wrongful conviction of an innocent person. The consequences of the

conviction of an innocent person are far more serious and its reverberations

cannot but be felt in a civilized society. Some risk of the conviction of the

innocent of course, is always there in any system of the administration of

criminal justice. Such a risk can be minimized but not ruled out altogether.

The following observations of Sir Carleton Allen giving opposite

view may also be referred in this connection:

“I dare say some sentimentalists would assent to the proposition that it

is better that a thousand or even a million guilty persons should escape than

that one innocent person should suffer but no responsible and practical

person would accept such a view. For it is obvious that if our ratio is

extended indefinitely, there comes a point when the whole system of justice

has broken down and society is in a state of chaos”.

Other consequences

Penalizing the innocent is but one kind of victimization. Other kinds

involve infractions of the other rules of punishment. These are those which

provide heavier penalties for offences involving greater harms, for example
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grievous assault against petty theft. Here the deterrence theorists explain,

economy is obviously the justification.

The other consequences dealing with the responsibility of agents, have

been divided into three kinds. There are:

1) Those which allow that in certain circumstances a man is justified in a

kind of action which in other circumstances would be criminal, and so

is not to be punished at all. Killing in self-defence is sometimes an

example.

2) Secondly, there are rules, which specify that a man is to be excused in

certain circumstances and not punished at all. He may be excused if

his action was in some way quite involuntary or unintentional.

3) Finally, there are rules specifying that a man’s punishment is to be

mitigated under certain circumstances. If he can establish, for

example, that he was subjected to extreme provocation, he may

receive a lesser penalty.

Hart argues that it is impossible to explain the rules of excuse and

mitigation by reference to deterrence and then goes on to explain them by

the consideration. For example that they increase the power of individuals
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to identify beforehand periods when the law’s punishments will not interfere

with them.

Limitations of deterrence theory

The efficacy of criminal punishment as a deterrent has often been

doubted by those who assert that many people do become criminals and will

continue to do so in spite of the threats of condemnation and fear of

punishment. Deterrence though important cannot be thought of as the sole

or overriding purpose of the criminal law. For deterrence is negative,

whereas the purpose of law is positive. It has also to be borne in the mind

that many crimes are undeterrable.

Munsterberg has stated about the limitations of the deterrent power of

the punishment as follows:

The hope of escaping justice in the concrete case will easily have a

strong feeling tone than the opposing fear of the abstract general law. The

strength of the forbidden desire will narrow the circle of association and

eliminate the idea of the probable consequences. The stupid mind will not

think the correct expectations, the slow mind will bring the check too late,

when the deed is done, the vehement mind will overrule the energies of

inhibition, and the emotional mind will be more moved by the anticipated
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immediate pleasure than by the thought of a later suffering. And all this will

be reinforced if overstrain has destroyed the nervous balance, or if

stimulants have smoothed the path of motor discharge. If the severity of

cruel punishment has brutalized the mind the threat will be as ineffective as

if the mildness of punishment had reduced its pain. Worst of all, this fear

will be ruled out if the mind develops in an atmosphere of crime where the

child hears of the criminal as a hero, and looks at Jail as an ordinary affair,

troublesome only as most factors in his slum life are troublesome; or if the

anarchy of corruption or class justice, of reckless legislation or public

indifference to law defeats the inhibiting counter idea of punishment and

deprives it of its emotional strength.

The next point is that the punishment to be effective and deterrent

must be certain. The criminal justice system, which follows the principle

that the prosecution should establish the guilt beyond reasonable doubt and

benefit of the doubt goes to the accused, has never been able to use the

punishment in a deterrent manner. It is said that it is more important that

punishment should be swift and sure, “like a seal to hot wax” to use

Stephen’s metaphor. To illustrate, during the regime of Queen Elizabeth-I,

pick-pocketing was a capital offence. Yet the preamble of an Act of her

regime stated that pick-pockets were to be seen busily plying their trade
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amongst the crowds which gathered to witness the execution of those

committed the offence of pick-pocketing. It was mainly because the pick-

pockets were well aware that everybody’s eyes are fixed on the gallows and

the chances of detection are few and fewer still were the chances of

conviction.

Personality of an individual whom the punishment is awarded has its

own limitations as regards its deterrent aspects. For instance, the deterrent

effect will not be similar on all offenders. Punishment is more likely to deter

those who are respected person due to educational attainments, family

background and social and economic status etc. On the contrary it will have

very insignificant impact on hardened criminals. It is likely that even mild

punishments would be effective deterrents for many crimes, especially white

collar crimes, if they were swift and certain.

In case of general deterrence, so far as the threat of punishment is

concerned a survey of young men carried out by Willcock and Stokes in

1968 suggests that most people over-rate their chances of detection and rank

fear of what others will think about fear of punishment as deterrent.

General deterrence has a limited effect because of the delay in

punishing the criminals. It generally takes 6/7 years to finally dispose of a

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criminal case as the appeals can be filed in the higher courts against the

conviction/acquittal. By that time the general public may not remember the

offence for which the punishment was awarded. In addition general

deterrence depends upon the publicity given to the general public about the

arrest, conviction and the punishment of the offenders.

Severity of punishment

Severity of punishment has varied with certainty of punishment.

Putthammer has argued that punishment has never been given a really fair

chance to demonstrate just how much it can accomplish, for the reason that

we have tended to assume that severe punishment will deter, even if it is not

imposed certainly. When one offender is punished severely and ninety are

not even detected in their crimes, then the effects of an official policy of

severity cannot be determined.

The severity of punishment can be further mitigated by the grant of

pardon by the President and Governors are permitted by law to relax the

severity in individual cases. In the modem society, the severity of

punishment has been mitigated in other ways also. Corporal punishment has

disappeared. Death penalty has been abolished in many countries. In the

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last part of the 18th Century Bentham made the following statement

regarding the punishment of branding.

“Burning in the hand, according as the criminal and the executioner

can agree, is performed either with a cold or a red hot iron, it is only a slice

of ham which is burnt; to complete the force, the criminal screams, whilst it

is only the fat which smokes and bums and the king wing spectators only

laugh at this parody ofjustice”.

The impact of the punishment as deterrent has been further mitigated

in view of the increasing application of the probation system. The new code

of Criminal Procedure has incorporated S. 361 for the first time requiring the

Court to give special reasons in the judgment for not applying the probation

provisions incorporated in section 360 of the Code of Criminal Procedure,

Probation of Offenders Act and the Children Act. The liberal use of Section

361 of the Code of Criminal Procedure, 1973 by the Courts in favour of the

offenders has created an impression in the mind of victims, witnesses, law

enforcement agencies and the public at large that offenders are almost

invariably let off and the investigation, prosecution and trial of offences are

nothing but empty rituals. This has a serious effect on deterrence theory of

punishment which aims to prevent a person from repeating crime and to

prevent others from committing similar crimes.

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A Case study

The deterrence theory has some effect on many people cannot be

denied. But, it will be a difficult task to find out clearly as to who has been

deterred, on what occasions and to what extent, by the apprehension of

infliction of punishment. A study, to find out the deterrent effect of penal

sanctions made by Professor Schwartz and Miss Sonya Orleans with

reference to income tax laws is an interesting one. They divided about 400

tax payers into four matched groups. Members of the ‘Sanction’ group were

interviewed, and asked questions designed to remind them indirectly of the

penalties which they might suffer if they tried to evade taxes. Members of

the ‘Conscience’ group were interviewed and asked questions designed to

arouse their civic sense and feeling of duty. The third of ‘placebo’ group

were asked only neutral questions, which avoided both sort of stimulus. The

fourth groups were not interviewed at all. The interviews took place in the

month before the tax payers were due to file their returns for 1962. The

Internal Revenue Service compared the returns of the four groups for the

year before the experiment and the year 1962. The reported gross incomes

of both the ‘sanction’ and the ‘conscience’ groups showed an increase,

compared with small decreases in the ‘placebo’ and un-interviewed groups.

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The study, therefore, showed that the element of deterrence did have some

effect in changing the attitude towards taxation law.

The above study, however, may be applicable to certain white collar

crimes, but not to different types of crimes such as murder where even the

desired deterrent effect. By the year 1800 over 200 offences were

punishable by death in England. An 18th Century Judge, while awarding

death sentence to an accused guilty of a theft of a sheep observed ‘you are to

be hanged not because you have stolen a sheep, but in order that others may

not steal sheep’. Even then the crimes were committed because of the fact

that the police was not well organized and there was much uncertainty of

detection of crime and conviction of offenders, which was compensated

through the provision of severe punishment of death.

Even in the era when extremely severe punishment was imposed for

crime of minor importance no evidence can be found to support the view

that punitive measures materially curtailed the volume of crime. In

reviewing the evidence presented before a special committee of the House of

Commons (1930), Calvert boldly contended that “capital punishment alone

deters the burglar from carrying lethal weapons is a supposition which is

refuted”.
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Though deterrence as an aim of punishment has lost much of its

former importance, yet the deterrence theory cannot be entirely eliminated

from the penal system. Our Judges and legislators believe that punishment

has a deterrent effect. Justice James while explaining the objectives of

punishment observed that the twin objectives of punishments are to prevent

a person from repeating crime and to prevent other persons from committing

similar crimes. Deterrence as one of the objectives of punishment also finds

mention our judicial decisions. Legislators and others are also of the view

that severe penalties are more deterrent in cases of social and economic

offences. Mandatory and minimum terms of imprisonments have, therefore,

been prescribed for social and economic offences such as adulteration of

food and drug smuggling, black marketing, tax evasion etc. Recently the

Parliament has made the offences relating to adulteration of food and drugs

punishable with life imprisonment. The Indian Penal Code (Amendment)

Bill, 1972 has sought to bring all offences given in the Penal Code which are

punishable with imprisonment of two years or more (Now it is three years or

more), within the purview of Section 75 of the Code wherein enhanced

punishment extending up to life imprisonment has been provided for

subsequent conviction.
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A new provision (Section 433-A) has been recently incorporated in

Criminal Procedure Code in 1978, to achieve deterrent objective. It reads: -

“Section 433-A. Not withstanding anything contained in Section 432 of a

person for an offence for which death is one of the punishments provided by

law or where the sentence of death imposed on a person has been commuted

under Section 433 into one of imprisonment for life, such person shall not be

released from prison unless he has served at least fourteen years of

imprisonment.”

Sections 432 and 433 of the Cr.P.C. relate to remission and

commutation of sentences. In Meru Ram case, it was argued that fixing the

minimum period of 14 years under Section 433-A is against reformatory

theory. The argument excluded other punitive objectives such as deterrence

through example of prolonged pain and retribution through condign

infliction.

The question was whether rehabilitation is such a high component of

punishment as to render arbitrary, irrational and therefore, unconstitutional,

any punitive technique which slums over prisoner reformation.

The Supreme Court emphasized that remission schemes offer health

motivation for better behaviour, inner improvement and development of

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social fibre. While eccentricities of remission reducing a murderer’s life

term to short spells of two or three years in custody may scandalize

penologists, such fear may not flabbergast and sociologist if by sheer good

behaviour, educational starving and correctional success, a prisoner earns

remission enough for release after serving 7 or 8 years.

4.4. REFORMATIVE THEORY

Modem penology recognizes that punishment is no longer regarded as

retributive or deterrent, but is regarded as reformative or rehabilitative.

Reformation is defined as “the effort to restore a man to society as a

better and wiser man and a good citizen. Progressive criminologists across

the World will agree that the Gandhian diagnosis of offenders as patients

and his concept of prisons as hospitals - mental and moral - is the key to the

pathology of delinquency and the therapeutic role of punishment. It is, thus

clear that crime is a pathological aberration, that the criminal can ordinarily

be redeemed, that the State has to rehabilitate rather than avenge.

Punishment is therefore, said to be justified because -

(1) It provides an opportunity for State to take steps to reform offenders

and so control crime.

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(2) It is both a deterrent and an effective condemnation, and as such it has

reformative consequences

(3) The ultimate aim of the punishment is to “re-socialize” the offenders

to “readjust” him to society to rehabilitate” him, to “change him deep

inside”. The Indian Jail committee of 1919-20 defined the aims of

correctional administration “the prevention of further crime and the

restoration of the criminal to society as a reformed character”.

According to reformationists, a criminal is to be studied, like a patient

in his entire socio-economic milieu, and not in isolation, to understand

causative factors leading to criminality and then attempt be made to reform

or treat and rehabilitate the offender.

However, the term ‘patient’ used for offenders is to be used cautiously

for satisfactory explanation. All the offenders cannot be ill. This also

depends on one’s conception of illness. The conception of mental illness

given in McNaughten rules cannot be applied to all the offenders in a

general way saying that all offenders are mentally ill. Should we have much

wider conceptions of mental illness of the offender than now given in

Section 84, I.P.C. is a matter of opinion? Even if we expand the law of

mental illness all the offenders cannot be regarded as falling under it as

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mental illness can be broken down into a number of categories such (1)

disorders of emotion (2) psychopathic States. Among psychopaths one finds

a significant number of offenders, recidivists in particular. So even if it is

assumed that the offender is mentally ill or patient and reformation is

possible, the response to the various treatment measures will be different

categories of offenders. There will be chronic patients, i.e., hardened

criminals who do not have much likelihood of their treatment. On the other

hand there may be some offenders, though might have committed serious

offences like murder need no treatment since they are not a criminal from

the reformative point of view, as they committed the crime in exceptional

emotional situations without such planning or thought. What possible

reformation we can give to them if they are convicted and punished to

undergo life imprisonment.

Under these typical situations offenders should not be sent to jail from

the reformative angle. Here not the reformative theory, but the deterrent

theory applies to deter other potential killers in a similar situation.

There are only few aspects of the treatment problem which are to be

observed in practice while employing the reformative techniques to treat the

offenders. And as such there will still be a little element of the retribution

and deterrent aspects of punishment because of the very inevitability of

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punishment of some sort after crime. But, others say that in view of the

changed penal philosophy, the bulk of the component of punishment will

naturally be reformation and rehabilitation with a view to refit the offender

as a useful member of society.

Cross conflict in reformative and deterrent objectives

Modem society considers various objectives in order to control crime and

considers imprisonment the means to attain the twin aims, i.e., reform and

treatment of the criminals so that they will commit no crime after their

release. Society also seeks protection from criminals. And for this purpose

prison isolates criminals from the community for a certain time. All these

objectives - reformation, retribution and deterrence, within the prison result

in cross conflict. James v. Bennet, Director of the Federal Bureau of prisons

in the United States has stated the problem of Cross Conflict as follows:

Even our modem system is proceeding on a rather uncertain course

because its administration is necessarily a series of compromises. On the

one hand, prisons are expected to punish, on the other, they are supposed to

reform. They are expected to discipline rigorously at the same time they

teach self reliance. They are built to be operated like vast impersonal

machines, yet they are expected to fit man to live normal community lives.
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They operate in accordance with a fixed automatic routine, yet they are

expected to develop individual initiative. All too frequently restrictive laws

into free prisoners idleness despite the fact that one of their primary

objective is to teach men how to earn an honest living. They refuse a

prisoner a voice in self government, but they expect him to become a

thinking citizen in a democratic society. To some, prisons are nothing but

country clubs, catering to the whims and fancies of the inmates. To others

the prison atmosphere seems charged only with bitterness, rancor and an all

pervading sense of defeat. And so the whole paradoxical scheme continues,

because our ideas and views regarding the function of correctional

institutions in our society are confused, fuzzy and nebulous.

Conflict between reformative, deterrent and retributive measures has

been a controversial issue from the point of correctional administration as

well as treatment of the offenders. Some criminologists have even gone to

the extent of suggestion that prisons should ultimately be eliminated by

introducing new reformative techniques in the correctional field. Special

mention may be made of probation, fine, collective labour, etc. However,

the stand taken by [Link] Singh, Director of the Institute of Social Defence,

New Delhi, seems to be more practical. He states that there is a definite

need to protect society by segregating those who are so dangerous as to

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require a close custody, control and supervision. He stresses that as long as

crime proliferates as a way of life supported by organized syndicates, the

prison would continue to play a vital part in dealing with hardened, the

habitual and the incorrigible. At the same time the rationale of imprisoning

those who are themselves the prey of criminogenic situations rather than

being the perpetrators of crime is being widely challenged.

With the advent of social science to the arena of punishment,

however, a new clearly defined school of thought has arisen whose

insistence on the reform of the convict as the central theme of criminal

sanctions excludes or subordinates all other ends of punishment. Certainly

the ideal of complete reform has not been reached, although there is wide

agreement on the value of this goal of punishment.