1

JAMIA MILLIA ISLAMIA

FACULTY OF LAW

PROJECT WORK ON
Reformative Theory of Punishment
and its Application in India.

SUBMITTED TO: SUBMITTED BY

MR. Owais Farooqui Shama Praveen
Faculty of law LLM- 1st year
Jamia Millia Islamia Student Id-20176012
 2

Contents

1. Table of Cases……………………………………..3
2. Literature Review………………………………….4
 Research Questions……………………...7
3. Introduction………………………………………..8
4. The concept of Reformative Theory………………8
 Development of the concept………………...9
4. Reformative Theory and India…………………….11

 Reformative Theory and Juvenile Justice..11

 Reformative Theory and Probation……....14
 Reformative Theory and Parole………….15
5. Recent trends in Reformative Theory…………….16
6. Reformative Theory- How far useful……………..18
7.Conclusion………………………………………....19
8. Bibliography……………………………………….20
 3

Table of Cases

1. Narottam Singh vsState of Punjab (AIR 1978 SC1542)

2. Rattan LalvsState of Punjab (AIR 1965 SC 444)

3. Musa Khan vs State of Maharastra (AIR 1976 SC 2566)

4. Sunil Batravs Delhi Administration (AIR 1978 SC 1675)

5. D.K Basuvs State of West Bengal (AIR 1997 SSC 416)

6. SheelaBarsevs Union of India (AIR 1986 SC 1773)

7. Mohammed Giasuddinvs State of Andhra Pradesh. (AIR 1977 SC 1926)

8. RamjiMissarvs State of Bihar (AIR 1963 SC 1088)

 4

Literature Review
This project paper is to make a study on the Reformative Theory of Punishment and its
application in India. The paper basically attempts to analyze the very basic ideas of the concept
reformative justice and how far this concept has been adopted in Indian legal system and some
other related aspects in this regard. Reformative Theory is not a newly emerged concept of law,
the root of this theory is of old ages. For making the study more analytical, more
comprehensive, a broad review of the research materials which helped to prepare this project,
that how far the concept itself is rational, what are the views of famous jurists on this theory and
how effectively it is working in India?

Noted Indian legal thinker Dr. N.V Paranjape in his book1 said that it is a very common fact
that punishing the offenders is a primary function of all civil states. Almost all the civil states
primarily concerned for maintaining law and order within its purview. However the incidence of
crime and its retribution has always been an unending fascination of human mind. During the last
two hundred years, the practice of punishment and public opinion concerning it have been
profoundly modified due to the rapidly changing social values and the sentiments of the people.
Traditional aspect of inflicting pains to the wrong doers has started being questioned on its
rationality. The crucial issue that whether a criminal is to be regarded by society as a nuisance to

1
N.V Paranajape: Criminology and Penology with Victimology, (15th Edition)
 5

be abated or an enemy to be crushed or a patient to be treated or refractory child to be

disciplined? Or should he be regarded as none of these things but simply be punished to show to
others that anti-social conduct does not finally pay. However, in his discussion on reformative
theory he has overlooked the matter that although punishment is evil but it works as a necessary
to maintain law and order in the society.

The reformative view of penology suggests that punishment is only justiciable if it looks in to the
future not to the past. “It should not be regarded as setting an old account but rather as opening a
new one”. Thus the supporters of this view justify prisonisation not solely for the purpose of
isolating criminals and eliminating them from society but to bring about a change in their mental
outlook through effective measures of reformation during the term of their sentence. 2

According to this theory, the object of punishment should be the reform of the criminal, through
the method of individualization. It is based on the humanistic principle that even if an offender
commits a crime, he does not cease to be a human being. He may have committed a crime under
circumstances which might never occur again. Therefore an effort should be made to reform him
during the period of his incarceration. The object of punishment should be to bring about the
moral reform of the offender. He must be educated and taught some art or industry during the
period of his imprisonment so that he may be able to start his life again after his release from
jail.3Because of this humane perspective of this theory, reformative theory is supported by lots of
human right activists. But for the end of the justice, how far this theory is fruitful, is a big
question.

This theory aims at rehabilitating the offender to the norms of the society i.e. into law abiding
member. This theory condemns all kinds of corporeal punishments. This aims at transforming
the law offenders in such a way that the inmates of the peno-correctional instituions can lead a
life like a normal citizen. These prisons or correctional homes as they are termed humanely treat
the inmates and release them as soon as they feel that they are fit to mix up with the other
members of the community. The reformation generally takes place either through probation or
parole as measures for reforming criminals. It looks at the seclusion of the criminals from the
society as an attempt to reform them and to prevent the person from social ostracism. Though

2
Ibid.
3
TanuPriya, Reformative Theory of Punishment, Lawctopus, Law Journal. September 2, 2014
 6

this theory works stupendously for the correction of juveniles and first time criminals, but in the
case of hardened criminals this theory may not work with the effectiveness. In these cases come
the importance of the deterrent theory and the retributive theory.4 To meet with the problems of
crime, especially the hardened, mere reformative policy will serve the purpose actually, it is not
so easy to get the answer. So applying the reformative theory in offenders irrespective of the
nature of the offences, degree of offences, far reaching consequences of the offence, and in fact
the ultimate object of punishment may not get served.

Coming to the Indian perspective of reformative theory, Dr. P.K.Sen, a well-known author on
Indian Penology has given a comparative account of the old and new penal systems. He observed
that penology embodies the fundamental principles upon which the state formulates its scheme
of punishment. He further pointed out that punishment always lacks exactness because it is
concerned with human conduct which is constantly varying according to the circumstances. The
ancient Indian Criminal justice administrators were convinced that punishment serves as a check
on repetition of crime and prevents law breaking. The modern trend however is to replace
retributive and deterrent methods by reformative and corrective measures, the object of being
rehabilitation of the offender. 5

Reformation of criminals should be the object of punishment while ‘individualization’ the

method of it. Reformation in case of juveniles, first offenders and women offenders and
deterrence for hardened criminals and recidivists should be ultimate object of penal policy. 6
Emphasizing on the reformative aspect of penal justice, the Supreme Court in Mohd. Giasuddin
vs. State of A.P7 held that the state has to rehabilitate the offender rather than avenge him. Mr.
Justice Krishna Iyer further observed, “Sub-culture that leads to anti-social behavior has to be
countered not by undue cruelty but by re-culturialisation”. The punishment to be efficacious
must include the combination of deterrence, prevention and reformation so that it prevents a
future wrong besides bringing a change in the attitude of the offender through reformative
measures during the period of his incarceration.

4
Shaswat Dutta, Theories of Punishment--A Socio-Legal View. Legal Service in India.
5
Supra 1 Page No. 253.
6
Supra 1 Page no. 254
7
AIR 1977 SC 1926
 7

Moreover the concept of Victimology which covers within its ambit not only the victims of
individual criminality, but also those of the abuse of criminal process and administration of
justice. For this it is necessary to develop human rights consciousness among the law
enforcement personnel particularly, the police and jail authorities. 8 In India, undoubtedly, the
setting up of the National Human Rights Commission9in 1993 is a welcome step in this direction.
An ideal penal policy should resort to reformation in case of juveniles or first offenders and
deterrence for recidivists and hardened criminals. It is for this reason that modern penologists lay
greater emphasis on institutional methods of treating the offender rather than the traditional
methods of punishment which have now become obsolete and outdated. Truly speaking, the need
of the dayis for a rehabilitation program for all inmates with a substantial diminution in the use
of imprisonment and incarceration. Like other welfare state, in India there has been considerably
initiation taken for an effective realization of the ends of justice and humane treatment of
offenders.

Research Questions

Considering the literature review done, it will be better to proceed the further part of this project
with answering the following questions. The questions are basically raised on the idea of
reformative theory, its development, usefulness, and some other relative factors.

1. How did the concept of Reformative Theory get emerged?

2. What are the very basics of the Reformative Theory and how did the ideas got
popularity?
3. What is the Indian perspective of Reformative Theory and how far legislative initiations
yet taken in India by adopting it Indian system?
4. What is the role of Indian Judiciary in the adoption of reformative measures for the
offenders?
5. How far the theory itself is useful for the purpose providing justice to meet the end of
law?

8
Supra 1Page no 257
9
NHRC was set up in 1993 headed by Justice Venkatchalliah, former CJI and four other members.
 8

CHAPTER 1

IntroductioN
The reformative theory of punishment, one of the major amongst the four theories basically
emphasizes on reformation of offenders through the method of individualization. It is based on
the humanistic principle that even if an offender commits a crime, he does not cease to be a
human being. Therefore an effort should be made to reform him during the period of his
incarceration.10With the passage of time, developments in the field of criminal science brought
about a radical change in criminological thinking. There was a fresh approach to the problem of
crime and criminals. Individualized treatment became the cardinal principle for reformation of
offenders. This view found expression in the reformative theory of punishment. 11

As against deterrent, retributive and preventive justice, the reformative approach to punishment
seeks to bring about a change in the attitude of offenders so as to rehabilitate him as a law

10
Dr. N.V Paranjape, Studies on Jurisprudence and Legal Theory. 6th Edition Page No. 188
11
Supra 1. P.No. 246
 9

abiding member of society. Punishment is used as a measure to reclaim the offenders and not to
torture or harass him. 12

The reformative theory suggests that punishment is only justiciable if it looks to the future and
not to the past. It should be regarded “as setting an old account but rather as opening a new one”.
Thus advocates of this theory justify prisonisation not solely for the purpose of isolating
criminals and eliminating them from society, but to bring about a change in their mental attitude
through effective measures of reformation during the term of their sentence. 13

CHAPTER 2

The Development of Reformative Theory of

Punishment.

The advocates of Reformative theory contended that by a sympathetic, tactful, and loving
treatment of the offenders, a revolutionary change may be brought about in their characters.Even
the cruel hardened prisoners can be reformed and converted into helpful friends by good words
and mild suggestions. Severe punishment can merely debase them. Man always kicks against
pricks. Whipping will make him balk. Threat will result in resistance. Prison hell may create the
spirit of defiance of God and man. Hanging a criminal is merely an admission of the fact that
human beings have failed to reform the erring citizen. Corporal punishments like whipping and

12
Ibid Page no. 246
13
Supra 9 P.No. 188
 10

pillory destroy all the finest sentiments and tenderness in man. Mild imprisonment with
probation is the only mode of punishment approved by the advocates of reformative theory.14

According to view ofReformative Justice,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. There are many incorrigible offenders who are beyond the reach of
reformative influences and with whom crime is not a bad habit but an instinct and they must be
left to their fate in despair. But people criticize; the primary and essential end of criminal justice
is deterrence and not reformation. The Reformative theory is supported by scholars of
Criminology. Criminology regards every crime as a pathological phenomenon a mild form of
insanity, an innate or acquired physiological defect. There are some crimes which are due to
willful violation of the moral law by normal persons. Such criminals should be punished
adequately to vindicate the authority of the moral law. In terms of the theory, offenders largely
commit crime because of Psychological factors, Personality defects and Social pressures.15

It is well known that punishment carries with a stigma inasmuch as it fetters the normal liberty of
the prisoner. It has become an integral part of law enforcement for securing for securing social
control. More recently, the reformative theory is being extensively used as a method of treatment
of mentally depraved offenders. The present trend is to treat the offender rather than to punish
him. This is done by classifying offenders on the basis of age, sex, gravity of offence and mental
depravity. Thus clinical method pre-supposes punishment as a kind of social surgery since
criminal is essentially a product of conflict between interests of individuals in the society.16

Thus the advocates of this theory justify prisonisation not solely for the purpose of isolating
criminals and eliminating them from the society, but to bring about a change in their mental
attitude through effective measures of reformation during the term of their sentence. In Narottam
Singh v. State of Punjab 17 , the Supreme Court of India has taken the following view-
“Reformative approach to punishment should be the object of criminal law, in order to promote
rehabilitation without offending community conscience and to secure social justice.”

14
TanuPriya, Reformative Theory of Punishment, Lawctopus, Law Journal. September 2, 2014
15
Ibid.
16
Supra 9, P.No 189.
17
AIR 1978 SC 1542
 11

CHAPTER 3

Reformative Theory and India

Dr. P.K Sen, a well-known authority on Indian penology has given a comparative account of the
old and new penal systems. He observed that penology embodies the fundamental principles
upon which the state formulates its scheme of punishment. He further pointed out that
punishment always lacks exactness because it is concerned with human conduct which is
constantly varying to the circumstances. A well-defined penal system did exist in ancient India
even in the time of Manu or Kautilya. In ancient Indian criminal justice administrators were
convinced that punishment serves as a check on repetition of crime and prevents law-breaking.
They believed that all theories of crimes whether based on vengeance, retribution, deterrence,
expiation or reformation are directed towards a common goal, that is, the protection of society
 12

from crime and criminals. Thus punishment was regarded as a measure of social defence and a
means to an end.18

The modern trend of punishment is, however, is to replace retributive and deterrent
methods by reformative and corrective measures, the object being rehabilitation of
the offender. Considering this issue, India legal system has adopted some
measures. Broadly dividing, these measures aretaken under the following
legislative enactments.

1. The Juvenile Justice (Care and Protection of Children) Act 2000

2. The Probation of Offenders Act, 1958.
3. Indian Penal Code 1860.
4. Criminal Procedure Code 1973.

Reformative Theory and Juvenile Justice

The early criminal justice system did not recognize any distinction between adults & juvenile
offenders so far punishments were concerned. It is only with the popularity of Reformative
theory of punishment, it was realized that the youngsters between a certain age group should be
differently treated .in the matter of punishment because they are easily attracted to temptations of
life & thus lend into criminality without any real intention of committing a crime. It is with this
purpose that most countries are now tackling the problems of juvenile delinquents on priority
basis setting up separate juvenile courts or Boards to deal with young offenders & the procedure
adopted in these radically differ from that of a regular trial court.19

In India, the first attempt to separate juvenile offenders from adult prisoners was made in 1890
when Reformatory School Act was passed. The young offenders were lodged in these institutions

18
Supra 1 Page No. 253.
19
Supra 9 Page No. 191
 13

which imparted industrial training to them for their rehabilitation. The Reformative School Act
1890 basically aimed at preventing young offenders from becoming hardened or professional
criminals in future. The Reformative School Act 1890 subsequently replaced by the Children
Act 1960. However, this Act too got amended in 1978 and finally it was replaced by Juvenile
Justice Act 1986. The Juvenile Justice Act was a comprehensive law on trial rehabilitation and
reformation of juvenile delinquents.

The Act of 1986 basically based on two fundamental resumptions, namely,

1. Young offenders should not be tried but should rather be corrected.

2. They should not be punished but treated.

However, consequent to the passing of U.N Convention on the rights of child on 20 th November,
1989 which was ratified by the Government of India as a member party on 11th December 1992,
the standard prescribed by the said convention had to be adopted. Therefore, a new Act was
required to pass. Accordingly, the Juvenile Justice (Care and Protection of Children) Act 2000
was passed. It replaced the existing Juvenile Justice Act 1986.

The Juvenile Justice Act 2000 provides the main features as, that the cases of juvenile
delinquents are now to be handled by the Juvenile Justice Board. 20 Even the term “juvenile
delinquent” has been dropped and they are now to be known as “Juvenile in conflict with law”21.
Under this Act, a ‘juvenile’ or ‘child’ means a person (boy or girl) who has not completed
eighteen year of age.22 The Act provides establishment of Children Homes, Observation Homes,
Borstal Institutions and Reformatories. A number of such institution functioning throughout
India where adequate educational and vocational training is imparted to young offenders who are
committed by the Juvenile Justice Boards. The states have also established After-care
Associations and Child-Aid Societies for rehabilitation of young offenders who need care and
protection after their release from Homes, Barsalsof Reformatories.

20
Section 4 of the Juvenile Justice Act, 2000.
21
Section 2 (l)
22
Section. 2 (k) In the earlier Act i.e. Act of 1986 this age was 16 for boys and 18 for girls.
 14

A unique feature of this Act is community service as an alternative to traditional means of

imprisonment or fines.23 The Juvenile found guilty of an offence is to serve out his sentence by
working for the welfare of the community which helps in making him/her self-reliant and
cooperative with fellow workers. These offenders are booked for community service for a
specified period and if they serve this period out clean, they are let off in free society.

In fact, it would be worthwhile to implement community service as an alternative to traditional

imprisonment in case of adult offenders as well, who are convicted for minor offences which do
not have any adverse effect on the security of the society. The system has been successfully
operating in U.S.A for the last so many years.

In SheelaBarsevs. Union of India24 case, the Apex Court had released children below the
age of 16 years detained in jails all over the country. The Supreme Court has highlighted the
importance of proper handling, training, and guidance of children both on the part of society &
government. The Act provided for Juvenile Welfare Boards & Juvenile Courtsfor care & trial of
juveniles. It also empowered the State Governments to free children from clutches of jails, & to
establish Juvenile Homes for the reception of neglected juveniles (non delinquent children)
&Special Homes (Observation Homes)for the custody of delinquent juveniles. According to
Justice Bhagwati 25 “Juvenile Delinquency” is by and large, a product of social & economic
maladjustment. Even if it is found these delinquents have committed offences, they cannot be
allowed to be maltreated. They do not shed their fundamental rights when they enter the jail. The
law throws a cloak of protection around juveniles & seeks to isolate them from criminal
offenders because the emphasis placed by law is not incarceration but on reformation.

In Musa Khan v. State of Maharashtra,26the Supreme Court observed that this Act is
a piece of social legislation which is meant to reform juvenile offenders with a view to prevent
them from becoming hardened criminals by providing an educative and reformative treatment to
them by the government.

23
Section 15 of Act 2000. The Act has further been amended in 2006.
24
AIR 1986 1773 SCR (3)
25
Ibid.
26
AIR 1976 SC 2566
 15

Reformative Theory and Release of

offenders on Probation.

The release of offenders on probation is yet another reformative technique devised as an

alternative to conventional incarceration of offenders in prison. In this technique of probation,
the offender is released on probation with or without conditions and is allowed to live in the
community for his self-rehabilitation. Thus probation implies postponement of final sentence of
a convicted offender for a certain period of time so as to enable him to have an opportunity
correct his conduct and readjust himself in the community. 27The law relating to Probation of
Offenders in India is contained in the Probation of Offenders Act, 1958 which is a
comprehensive legislation on probation law. Section 360 of the Code of Criminal Procedure,
1898 made a provision for the release of certain offenders on Probation. Spelling out the object
of the release of offenders on probation, the Supreme Court in RamjiMissar v. State of Bihar28,
observed:

“The purpose of release of youthful offenders on probation is to stop their conversion

into stubborn criminals as a result of their association with hardened criminal of
mature age. Modern Criminal Jurisprudence recognizes that no one is born criminal
& that a good many crimes are the result of socio-economic milieu. Although not
much can be done for hardened criminals, yet a considerable emphasis has been laid
on bringing about reform of juveniles who are not guilty of very serious offences by
preventing their association with mature criminals.”

The Supreme Court observed inRattan Lal v. State of Punjab,29that the Act is a milestone in
the progress of the modern liberal trend of reform in the field of penology.

27
Supra 9P.No 192.
28
AIR 1963 SC 1088
29
AIR 1965 SC 444
 16

Thus briefly, it may be said that probation is a reformative technique of

treatment and rehabilitation of young offenders. It is a conditional suspension of
sentence of the offender as a substitute for punishment.

Reformative Theory and Release on

Parole.
It is generally believed that a prisoner who is released from prison is a danger to society. Ex-
prisoners are generally shunned, feared & discriminated & thus they are compelled to become
wicked rather than being helped to lead an upright life. In order to obviate this situation, a
corrective technique known is “Parole”, which has been devised to provide an opportunity for
the prisoner to rehabilitate himself in the society on a promise to return to prison in case he
breaks the law. Thus parole is the release of a long term prisoner from a penal institution after he
has served a part of his sentence in prison-custody & on condition that he shall return to the
prison to undergo the unexpired sentence in the event of misbehavior30.

In India, the power to release the prisoners on parole is exercised by the executive under the
respective laws operative in the State. President and Governors of States are vested with powers
to provide pardon. Parole is also known as a pre-mature release of offenders after a strict
scrutiny of long term prisoners, under the rules laid down by various governments. Premature
release from prison is conditional subject to his behaving in society & accepting to live under the
guidance & supervision of Parole Officer.

It seems the word “Parole” which means a term to designate conditional release granted in a
penal institution” in the encyclopedia of the social sciences, is used in different senses in
different States. The State of Uttar Pradesh, Madhya Pradesh, Punjab& Haryana have a
legislation on this subject. A set of Model Parole Rules have been framed sometimes ago by

30
Sir Robert Gross: The English Sentencing system p, 33
 17

the Crime Advisory Board on correctional services with a view to preserving a basic uniformity
of approach in the country.31

CHAPTER 4

Reformative Theory and recent

trends in this field.

31
Supra 13
 18

The Reformative methods have proved useful in case of Juvenile Delinquents, First Offenders &
Women. Sex-psychopaths also seem to respond favorably to the reformative method of
punishment. More recently, the reformative theory is being extensively used as a method of
treatment of mentally depraved offenders. This present trend is to treat the offender rather than
to punish him. This is done by classifying offenders on the basis of age, sex, gravity of offence
and mental depravity. Thus clinical method pre-supposes punishment as a kind of social surgery
since criminal is essentially a product of conflict between interests of individuals in the society.

In recent years, the Supreme Court of India has awarded compensation to victims who suffered
due to torture or negligence by the prison or jail authorities. In the words of Justice Krishna
Iyer:32 “a Holistic view of sentencing and a finer perception of the effect of imprisonment give
short shrift to draconian severity & self-defeating. Perhaps the time has come for Indian
Criminologists to rely more on Patanjali Sutra as a scientific & curative for crimogenic factors
than on the blind jail term set out in the Penal code & that may be why Western researchers are
now seeking Indian Yogic ways of normalizing the individual & the group.”

Mr. Justice Krishna Iyer focuses on certain elemental factors which are of great significance for
criminology thoughts particularly so far as our country is concerned to him the Gandhian
diagnosis is the key to the pathology of delinquency & therapeutic role of punishment. It treats
the whole man as healthy man & every man is born good and so the modern principles of
penology and reform and rehabilitation of the offender ought to guide and inform the Indian
criminal courts.

The spirit of correctional philosophy in criminology is rightly described by Justice Krishna Iyer,
“Every saint has a past and every sinner a future, never write off the man wearing the criminal
attire but remove the dangerous degeneracy in him, restore his retarded human potential by
holistic healing of his fevered, fatigued or frustrated inside and by repairing the repressive,
though hidden, injustice of the social order which is vicariously guilty of the criminal behavior of
many innocent convicts. Law must rise with life and jurisprudence responds to humanism.”

32
V.R Krishna Iyer: “Justice and Prison: Jurisprudence and Versatile Criminology” in Rani DhavanShankardass,
Punishment and the Prison: Indian and International Perspectives 2000, Sage Publications. New Delhi, P.58.
 19

In Sunil Batravs Delhi Administration33, Karuna (Mercy) is treated as the main spring of
jail justice which would obviate torture some behavior which spoils the reformatory and
correctional process. According to Krishna Iyer, “fair treatment will enhance the chance of
rehabilitation by reactions to arbitrariness”. Modern times understands the need to reform the
criminal & he commits crimes because of social; inequalities & injustice i.e. poverty, illiteracy,
squalor & disease. Offender is to be treated as a sick man to be healed rather than as a malefactor
to be chastised. Further Socialization of the offender would eliminate the factors which
motivated him to commit the crime & he gets a chance of leading a normal life in society.
Reformative theory made special focus on greater attention on humanly treatment of prisoners
inside the prison. This purpose may be achieved through the agencies of parole & probation
which have been accepted as modern techniques of reforming the offenders all around the world.
The modern view is that “the mainspring of criminality is greed and if the offender is made to
return the ill-gotten benefits of crime, the spring of criminality would dry up”

The Apex Curt in D.K. Basu v. State of West Bengal34, held that custodial torture or death
in the lockup strikes a blow at the rule of law and therefore, the court even recommended a
change in the law of evidence to throw the onus on the police or jail authorities as to how a
prisoner in their custody came to meet the death under suspicious circumstances. The Court has
provided monetary compensation to the victims of police excesses in several cases. In this case
Ashok Kumar Johri who succumbed to injuries sustained while carrying a load at the behest of
the Roorkee Sub-jail authorities, the National Human Rights Commission directed U.P.
Stategovernment to pay One Lakh rupees to his parents as compensation & issued guidelines that
an under-trial cannot be put to hard task.

CHAPTER 5

Reformative Theory- How far

useful?
33
AIR 1978 SC 1675
34
1997 (1) SSC 416
 20

Hearing the term ‘punishment’ we get a sense some areas like an uncomfortable and unpleasant
circumstance, a sequel of wrongful act, an act for which the punished is answerable to the society
etc. etc. Even Durkheim35 treated punishment as the reaction of the society against a crime. To
him, punishment is generally in the form of an outrage or anger thus rather being reparative or
reformative becomes punitive. Thus the legitimacy of the reformative theory itself is criticized
by number of legal thinkers.

The focal point of reformists vie that an effort should be made to restore the offender to society
as a good and law abiding citizen. But Oppenheim has criticized this view stating that the
reformative approach would deprive punishment of its sting or painful effect and if criminal is
looked upon as an object of pity, not of hatred, punishment would become a charity. 36 Moreover
it is significant to note that the authors of American study also criticized reformative theory,
saying “it never commanded more than a lip service from of its more powerful adherents. The
prison admission who embraced rehabilitate idea, have done so because it increased their power
over inmates.37

Undoubtedly,the modern trend is in favor of reformative justice but there is a strong feeling
that the method should not be stretched too far. The reformative methods have proved useful
in cases of juvenile delinquents, first offenders and women. Sex-psychopaths also seem to
respond favorably to the reformative method of punishment. But hardened and professional
offenders hardly respond favorably to reformative ideology because they are incorrigible
offenders with whom crime is not much a bad habit but it is an ineradicable instinct in them.
For such offenders, deterrent theory is perhaps the only alternative. So punishment should not
be regarded as an end in itself but only as a means, the end being the social security and
rehabilitation of offenders in society. Considered from this view, the importance of deterrent
element in criminal justice system should not be overlooked, but at the same time it must not

35
Eminent philosopher.
36
Oppenheim: Rationale of Punishment 1975) P 245.
37
Kamenka and Brown: Ideas and Ideologies of Law and Society P. 112
 21

be allowed to assume undue prominence. How much prominence it may be allowed is a

question of time, place and circumstance. 38

CHAPTER 6

38
Salmond on Jurisprudence. 12th Edition P 97.
 22

Conclusion
Just because someone has done an offence, he must not ceased to be a human being. A man may
commit an offence being in an extremely unfavorable situation. Researches in the field of
Criminology, revealed fact that, there remains such factors behind committing different crimes
for which the criminal himself is less liable sometimes. A man’s biological factors, socio-
anthropological factors, economically downtrodden condition etc. etc. can lead him to commit a
crime. Undoubtedly criminals should be punished, but that does not mean he is to be kicked
away from the society. His being a part of society after committing a crime is needed as it will
avail him scopes to get back in in the mainstream as a law abiding citizen.

The purpose of punishment is to reform the offender as a person, so that he may he become a
normal law abiding member of the community once again. Here the emphasis is placed not on
the crime itself, the harm caused or the deterrence effect which punishment may have, but not on
the person and the personality of the offender. Rehabilitation seeks to bring about fundamental
changes in offenders and their behaviors. In terms of Reformative theory, offenders largely
commit crime because of psychological factors, personality defects, or social pressures. This
theory basically aims at transforming the criminal minds in a way that inmates of the correctional
institutions can lead the life of a normal citizen.

In Indian perspective, it can be said that due to least research in analyzing the factors behind
commission of a crime, reformative way of punishment yet not sufficiently applied. Although
some measures have been adopted for long times, but in comparison to unjust treatments to the
offenders and even to the mere alleged offenders, measures are very negligible. However a
recent increased public awareness of alternatives to classic prison system, as well as awareness
of very basic human rights, fundamental rights, legislatures being driven by public demand
started taking initiation. Judiciary with its limited power doing a tremendous job interpreting
legal provision with humanitarian approaches. In deciding different writs or even suomotu, the
Judiciary widening the scope of it in India. Thus, concluding the project by saying, even from the
strictest economic point of view, individual man and woman are considered to be themost
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valuable assets of any society, it is therefore better to save them for a life of usefulness rather
than punish them by imprisonment.

Bibliography
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PRIMARY SOURCES:

1. The Juvenile Justice (Care and Protection of Children) Act 2000

2. The Probation of Offenders Act, 1958.
3. Indian Penal Code 1860.
4. Criminal Procedure Code 1973.

SECONDARY SOURCES:

1. PROF. N.V Paranjape, “Studies in Jurisprudence and Legal

Theory”.7th Reprint 2014. Central Law Agency.

2. PROF. N.V Paranjape,Criminology and Penology with

Victimology15th Edition2012 Central Law Publications

3. Reformative Theory of Punishment ByTanuPriya,Lawctopus’ Law

Journal + Knowledge CentreSeptember 2, 2014.

4. Theories of Punishment--A Socio-Legal View.

Shaswat Dutta, Legal Service in India.

5. www.indiankanoon.com

6. INDIAN LAW JOURNAL