INDEX

S.no Particulars Page Numbers

1 Certificate 1
2 Acknowledgment 2
3 Jurisprudential Theory 4
4 Case Study 5
5 Analysis 6
6 Conclusion 7
7 Bibliography 8

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JURISPRUDENCIAL THEORY
“the story of the gradual Renewal of a man, the story of his gradual regeneration, of
his Passing from one world into another, of his initiation into a new Unknown life.”

In the above excerpt underlines the basic principle of the reformative theory. It
emphasizes on the renewal of the criminal and the beginning of a new life for him. The
most recent and the most humane of all theories are based on the principle of reforming
the legal offenders through individual treatment. According to this theory the object of
punishment should be to reform the criminal. The theory of reformation through punishment
is grounded on the sublime philosophy that every man is born good but circumstances transform
him into a criminal. Hence, reformation should be the main objective of punishment and during
incarceration, every effort should be made to recreate the good man out of a convicted prisoner
that’s why now in prisons they are educated and taught some art or industry during the
period of their imprisonment so that they may be able to start their life again after their
release from the jail. This theory emphasizes that the object of punishment should be to
bring about the moral reform to the offender.

The view of Salmond on the reformation theory is that “if criminals are to be sent to prison to be
transformed into good citizens by physical, intellectual, and moral training, prisons must be
turned into comfortable dwelling places.” Salmond, in his treatise on Jurisprudence, points out
that there are in the world, men who are incurably bad. The reformative theory might be quite
helpless in the case of such persons as for them crime is an ineradicable instinct rather than a bad
habit. Therefore, according to him, the perfect system of criminal justice is based neither the
reformative, nor the deterrent principle exclusively, but is the result of a compromise between
them. In this compromise, it is the deterrent principle which wields the predominant influence.

Salmond further adds that the present-day acceptance of the reformative theory is, in a large
measure, a reaction to the conservative approach to the question of punishment. The extreme
inclination towards the reformative theory may be as dangerous as the complete acceptance of the
old code of punishment when too much attention was paid to the crime, and very little to the
criminal. It is also true that criminals are not generally ordinary human beings. They are often
mentally diseased abnormal human beings; but, if all murderers are considered as innocent and
given a lenient treatment, is it not possible that even ordinary sane people might be tempted to
commit that crime, in view of the lenient attitude of law towards crime? Thus, in course of time,
this theory would crumble down. The theory may be effective in the case of very young and the
completely insane offenders, but in other cases, some deterrent element in the punishment must
be present.

He refers to two objections; firstly law is too rough an instrument to distinguish

accurately between the normal and sub – normal. Secondly it is not clear that even in the
cases of abnormal persons, the deterrent effects of punishment are not effective and
necessary, except in extreme cases of humanity. If a person is deficient, he should not be
treated leniently than others as this hardly calls out for that ground. The abnormal persons

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can also be deterred from committing crime by discipline than to reform them by lenient
punishment. Under the circumstances, the deterrent theory must not be ignored in
criminal justice.

In spite of the view of Salmond, a lot of emphasis is being put on the reformative aspect
of punishment in modern times. In progressive states, provision are being made for the
prevention of habitual offenders. Borstal schools have been set up. Provisions are made
for a system of probation for first offenders.

CASE STUDY
Mohd. Giasuddin v. State of Andhra Pradesh1
FACTS
The appellant, Mohd. Giasuddin, along with another accused deceived several desperate
unemployed young men and under false pretences received various sums of Rs 1200 by
promising that they would secure jobs for them through politically influential friends and other
make-believe representations.

ISSUE
 Whether the appellant is liable for cheating?
 Whether the appellant should receive lesser punishment because of his small age
and socio – circumstance?

JUDGEMENT
“…mentioned that the social abhorrence of the crime is an input, since the emphatic denunciation
of a crime by the community must be reflected in the punishment.”2 .

The court directed the appellant to pay a fine of Rs 1200, to drive home a sense of moral
responsibility to repair the injury inflicted. The court also reduced the incarceration to 18 months.
The court also directed the State Government to see that within the framework of the Jail Rules;
the appellant is assigned work of a mental, intellectual, or like type mixed with a little manual
labour. This will ensure that the prisoner does work more or less of the kind he is used to so as to
convert this long period into a spell of healing. The jail, certainly, must be able to find this kind of
work for him, even on its own administrative side — under proper safeguards though.

1
1977 AIR 1926
2
This extract is taken from Mohd. Giasuddin v. State of A.P., (1977) 3 SCC 287 : 1977 SCC (Cri) 496 at
page 294.

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Anders Behring Breivik3

FACTS
The defendant killed 8 people while 9 persons were seriously injured when he detonated
a car bomb which had 950 kilos of self made bomb at the Government District in Oslo.
The explosion also caused extensive material damage. The same day the perpetrator
killed 69 people, of which the majority were participants at the Workers’ Youth League
(AUF)-run summer camp at Utøya Island. Most were killed by shooting or as a
consequence thereof. In addition 33 youths were seriously injured. Besides the physical
injuries a considerable number of people suffered mental aftereffects.

ISSUES
 Is the defendant liable for genocide?
 Should the defendant be called insane due to his activities for the past 2 years?

JUDGMENT

“The Penal Code section 147a first subsection paras. a and b, cf. the Penal Code
sections 148 first subsection first penalty alternative and 233 first and second
subsections, and 233 first and second subsections, cf. section 49, and the Penal Code
section 147a first subsection para. b, cf. sections 233 first and second subsections, and
233 first and second subsections, cf. section 49.

A man b. 1979 was sentenced to preventive detention for a term of twenty-one years and
a minimum period of ten years for two terror acts by which among other things 77 people
were killed.”4

ANALYSIS
Mohd. Giasuddin vs. State of A.P

Justice Krishna Iyer stated in the judgment that ‘subculture that leads to anti-social
behavior has to be countered not by undue cruelty but by re-culturialisation’. Giasuddin
was given a reduced sentence and also a way to earn money – by working under the jail
authorities, because he was the sole earner of the family and also because the court
thought a contrite convict, yet in his twenties, may deserve clement treatment. The
judgment given in regard of the conditions of appellant can put a bad effect on him and

3
Oslo District Court (Oslo tingrett) TOSLO–2011–188627–24E (11–188627MED–OTIR/05)
4
This extract of judgment is taken from http://murderpedia.org/male.B/b/breivik-anders-judgment.htm

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may not change his mindset regarding the commission of crime. The judgment will also
set a bad precedent for criminals that they will be spared for less punishment because of
their conditions and circumstances.

Punishment should create the combined effect of deterrence, reformation and prevention.
In appreciating approach prisons and reformation homes should not be converted into
earthly paradise to provide all sorts of comforts. Punishment should always serve as a
measure of a social defense. Kautilya in his Arthashastra modeled his penal policy on
utilitarian principle taking into consideration various social factor, traditions and customs
of the people.

Anders Behring Breivik

It's hard not to feel appalled, even outraged, that Norwegian far-right monster Anders
Breivik only received 21 years in prison for his attacks last year, including a bombing in
Oslo and a cold-blooded shooting spree, which claimed 77 lives. That's just under 100
days per murder. The decision, reached by the court's five-member panel, was
unanimous. He will serve out his years (which can be extended) in a three-room cell with
a TV, exercise room, and "Ikea-style furniture." If this thing would have happened
someplace else he would have been hanged or convicted for life.

Crimes are measured by their damage to society, and it's society that, working through
the court system, metes out in-turn punishment. Justice is treated as valuable and
important in itself, not just for its deterrence or incapacitative effects. In a retributive
system, the punishment fits the crime, and 21 years in a three-room cell doesn't come
close to fitting Breivik's 77 premeditated murders.

CONCLUSION
Reformative theory is definitely the most humane of all theories, it has the ability to
reform the offenders but even if criminals are treated as patients some of the hardened
criminals are incurably bad. If prisons are turned into comfortable place, the prison might turn
into dwelling place, at least for poor people. Even with the application of the theory crime rate is
ever increasing. This theory could not be applicable on incorrigible offenders for whom crime is
not a bad habit but an instinct, as they are beyond the reach of reformative influences, and they
must be left to their fate in despair. Reformative theory though seems good on paper but is in fact
difficult to apply in real situations, where the offender if given a second chance won’t think twice
in committing the offence, thinking he would be set free just like he was earlier and another loss
to property, life etc will occur, again.

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BIBLIOGRAPHY
 https://www.icct.nl/download/file/ICCT-De-Graaf-et-al-The-Anders-Behring-
Breivik-Trial-August-2013.pdf
 https://poseidon01.ssrn.com/delivery.php?ID=6180090311251210811260960931
011161231170110520160420900641050070101240690880020280920410390440
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210250910130210691021070311070190281211030871071000231030810680110
02113099091071112092092067&EXT=pdf
 Mahajan,V.D. : Jurisprudence & legal Theory,(5th ed.) p.147
 http://shodhganga.inflibnet.ac.in/bitstream/10603/124159/9/09_chapter%202.pdf
 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=d4648720-
96bb-4fab-8eca-32b16ce2dae1&txtsearch=Subject:%20Criminal

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