CRIMINOLOGY ASSIGNMENT

TOPIC: - CONCEPT OF PUNISHMENT: ITS THEORIES AND KIND

Submitted By

MOHAMMAD ZIYA ANSARI

BALLB (HONS)
SEMESTER-VII
ENROLLMENT NO- GI- 6492
FACULTY NO- 17BALLB- 72
1st GCT Assignment

Submitted To

Dr Md Kalimullah Sir

Assistant Professor, Faculty of Law

Aligarh Muslim University

ALIGARH-202002 (INDIA)
1-INTRODUCTION:
Administration of Justice is the primary functions of the State, is generally divided into
administration of Civil Justice and Administration of Criminal Justice.  The main purpose of
Administration of criminal Justice is to punish the wrongdoer. It is the State which punishes the
Criminals. From the ancient times, a number of theories have been given concerning the purpose
of punishment. The main purpose and object of criminal justice is to punish the wrongdoer
(offender) and to maintain law and order in society. It is the State which punishes the Criminal.
Punishment necessarily implies some kinds of pain inflicted upon the offender or loss caused to
him for his criminal act which may either be intended to deter him from repeating the crime or
maybe an expression of society disapprobation for his Anti-Social conduct or it may also be
directed to reform and regenerate him and at the time ported the society from criminals.  

2- MEANING OF PUNISHMENT: -
Punishment is a process by which the state inflicts some pain to the persons or property of person
who is found guilty of Crime. Punishment is one of the oldest methods of controlling crime and
criminality. The history of the early penal system in different parts of the world reveals that the
punishments were cruel and barbaric in nature. The word is the abstract substanvation of the verb
“to punish”, which is recorded in English since 1340, deriving from Old French puniss-, an
extended form of the stem of punir "to punish," from Latin punire "inflict a penalty on, cause
pain for some offense," earlier poenire, from poena "penalty, punishment of great loss”.
Colloquial use of “to punish” for "to inflict heavy damage or loss" is first recorded in 1801,
originally in boxing; for “punishing” as "hard-hitting" is from 1811.

3-ESSENTIAL ELEMENTS OF ‘PUNISHMENT’:

Punishment is the infliction by the state of consequences normally considered unpleasant, on a
person in response to his having been convicted of a crime”.
The important elements of punishment, according to Hart, are the following:
a- It must involve pain or other consequences normally considered unpleasant;
b- It must be administered for some offence against legal rules;
c- It must be administered to an actual or supposed offender for his offence;
d- Persons other than the offender must intestinally administer it;
e- It must be imposed and administered by an authority constituted by a legal system against
which the offence is committed

4- THEORIES OF PUNISHMENT: -
Theories of Punishment are as follows: - 
 
i) Deterrent Theory: - 'To deter' means, " to abstain from action/ doing ". Deterrent means,
“infliction of severe punishments with punishments with a view to prevent the offender from
committing the crime again."
According to this theory, the object of punishment is not to only prevent the wrongdoer from
doing a wrong a second time, but also to make him an example to others who have criminal
tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for
control of crime. The deterrent theory was the basis of punishment in England in the Medieval
Period. Sever and Inhuman punishments were order of the day and inflicted even for minor
offenses like pick pocketing and stealing etc. The culprits were subjected to the severe
punishment of death by stonning and whipping.

Criticism: -There is a lot of criticism of the deterrent theory of punishment in modern times. It

has been criticized on the grounds that it has proved ineffective in checking crimes and also that
excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of
the public towards those who are given cruel and inhuman punishment.
             
ii) Retributive Theory: -'Retributive' means, punitive or payback or make a return to."  In
Primitive society punishment was mainly retributive. The person wronged was allowed to have
revenge against the wrongdoer. The Principle of 'an eye for an eye', 'a tooth for a tooth ', a nail
for nail, limb for limb was the basis of criminal administration. 
Criticism: - Critics of retributive theory points out that punishment per se is not a remedy for
the mischief committed by the offender. It merely aggravates the mischief. Punishment in itself
evil and can be justified only on the ground that it yields better result.

iii) Preventive theory: - Preventive theory is also known as 'theory of disablement.'  According
to this theory, punishment is based on the proposition, "not to avenge crime but to prevent it"
The aim of this theory is to disable the criminal. Offenders are disabled from repeating the crime
by awarding punishments, such as death, exile or forfeiture of an office. By putting the criminal
in jail, he is prevented from committing another crime.
Criticism: - Critics points out that Preventative Punishment has the undesirable effect of
hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by
putting them in the association of Harden Criminals.    

iv) Reformative Theory: - According to Reformative theory, the object is of punishment is the
reformation of criminals. This theory seeks to bring about a change in the attitude of offender so
as to rehabilitate him as a law-abiding member of society. Even if an offender commits a crime
under certain circumstances, he does not cease to be a human being. The circumstances under
which he committed the crime may not occur again. Crime is a mental disease, caused by
different anti-social elements. Therefore, the mental cure of criminals rather than awarding
punishment will serve the purpose. If the criminals are educated and trained, they will be
competent to behave well in the society.

Criticism: Critics of this theory state that if Criminals are sent to prison to be transformed into
good citizens, a prison will no longer be a 'prison' but a dwelling house. This theory has been
proved to be successful in case of young offenders.  
 
v) Expiatory Theory: - Expiatory theory of Punishment is based on morals. According to this
theory repentance or expiation by offender itself is a punishment. If the offender expiates or
repents, he must be forgiven. Expiatory theory of punishment was prevalent in ancient Indian
criminal law. Expiations were performed by way of uttering mantras, fasting or even burning
oneself to death. 

vi) Theory of Compensation: -According to Theory of Compensation the object of punishment

must not be merely to prevent further crimes but also to compensate the victim of the Crime.

5- KINDS/ TYPES OF PUNISHMENTS: -

Types of Punishment are as follows -

1) Capital Punishment / Death Penalty -In the history of punishment, capital punishment/death

penalty has always occupied and very important place. In ancient times and even in the middle
age, sentencing of offenders to death was very common kind of punishment. Even for what
might be considered as minor offenses in Modern Times, death penalty was imposed. Death
sentence has always been used as an effective punishment for murderers and dangerous
offenders. It has both deterrent and preventive effect. The offenses which are punishable with
the death sentence are under the Indian Penal Code.

2) Deportation - Another way of punishment is the deportation of corrigible or dangerous

offenders. Deportation of criminals is also called banishment. Corrigible and hardened criminals
where generally clamored to far off places with a view to eliminating them from the community.
In England, war criminals there usually transported to distant Astro-African British colonies.
          

3) Corporal punishment – Corporal punishment was very common until late 18th century.  
Corporal punishment includes modulation, flogging (or whipping) and torture etc.

(a) Flogging - Dictionary meaning of word flogging means, "to whip or to beat with strap/stick
as punishment. In middle ages, Whipping was the commonest form of punishment. The
instruments and methods of flogging differ from country to country.
(b)  Mutilation – Mutilation is another kind of corporal punishment.  It is prevalent during
eminent Hindu Period. In case of theft, one or both the hands the offender were chopped off and
in case of sex offenses, his private part was cut off.
(c) Branding – In this type of punishment, criminals were branded with the appropriate mark on
the forehead so that they would be identified and subjected to public Ridicule. For example, if a
person found guilty of theft, the word 'theft' or 'T' it is branded on his forehead and the public
would call him theft.
(d) Chaining- Chaining the offenders together was also commonly used as a mode of
punishment. Their liberty and mobility were thus completely restricted. The hands and legs of
criminals were tied with iron rods and Chained together.
(e) Pillory -Pillory was yet another form of cruel and barbaric corporal punishment. It was in
practice till 19th century. Hardened criminals and dangerous offenders were nailed in walls and
shot or stoned to death.   
4) Fine and confiscation of property - This type of punishment was imposed for offenses
which were not serious in nature and were punished with the fine. This type of punishment was
especially used for offenses involving the breach of traffic and revenue laws. It is considered as
an appropriate punishment for minor offenses and crimes related to the property. Financial
penalty may either be in form of fine or compensation or costs.

5) Imprisonment -Another form of punishment is imprisonment.   Imprisonment represents a

most simple and common punishment which is used all around the world. If properly
administered, imprisonment can serve all the three objects of punishment. It may
be deterrent because it makes an example of the offender to others. It may
be preventative because imprisonment disables the offender, at least for some time, for
repeating the offense. If properly used, it might give opportunities for reformatting the character
of the accused.

6) Solitary Confinement - Another kind of punishment is solitary confinement. This

punishment may be considered as an aggravated form of imprisonment. In this type of
punishment, convicts are confined in solitary prison-cells without any contact with their follow
prisons.
7) Indeterminate Punishment - Another kind of imprisonment is indeterminate sentence. In this
case, the accusative is not sentenced to imprisonment for any fixed period. The period is left
determinant at the time of the award. When the accused show's improvement, the sentence may
be terminated.

8) Stoning - The punishment of stoning is barbaric in nature. It was in practice during the
medieval period. In Islamic countries like Pakistan, Saudi Arabia offenders found guilty of sex
were punished by stoning to Death. Though this type of punishment is barbaric in nature due to
its editor and effect, sex crimes against women are well under control of these countries.

6-CONCLUSION: -

The foregoing argument incorporates deontological and consequentialist considerations. It is

better than a pure retributivism because it shows why a system of punishment is needed and how
that system is to be nested into the larger political and moral concerns of a just society. It allots a
clear and defensible function to punishment (social defense) without yielding to atavistic
demands for retaliation or to illusory deontological demands for pure retributive justice, and
without pretending that the punishments it metes out are “deserved” in any fundamental sense.
The argument acknowledges the sovereign choices of the individual without invoking any
awkward and paradoxical “right to be punished”. It is better than a pure consequentialism,
because it constrains punitive interventions with individual liberty to the bare minimum
consistent with achieving the purpose of punishment and it is consistent with the rights of
offenders.