Theories of Punishment

Punishment-
Punishment is infliction of some kind of pain or loss
upon a person for his misdeeds. In criminal law
punishment is allowed due to wrongful intent involved in
the crime. A punishment such as incarnation seeks to
give any victim involved retribution against offender,
deter and hopefully rehabilitate the offender. This is
distinct from Civil law, which seeks to compensate the
injured party rather than punish the wrongdoer.
Justification of punishment typically takes place in five
forms.
1. Retributive
2. Deterrent
3. Preventive
4. Rehabilitative
5. Restitutionary

Justification of Punishment-
1. Prevents the person from future wrongs.
2. Rehabilitate to reform offender. Make him a law
abiding citizen.
3. Restoration for the offence committed. (The
punishment in the form of fine or payment of
compensation)
 THEORIES

1. Deterrent theory – to prevent, to obstain.

Draw Back of Deterrent theory-

 It fails in the case of hardened criminals
 It fails in the case of spur space of the moment
crimes
In Deterrent theory of punishment, the term “DETER” means to abstain from
doing any wrongful act. The main aim of this theory is to “deter” (to prevent)
the criminals from attempting any crime or repeating the same crime in
future. So, it states that deterring crime by creating a fear is the objective;
to set or establish an example for the individuals or the whole society by
punishing the criminal. That simply means, according to this theory if
someone commits any crime and he/she is punished by a severe
punishment, then, it may result maybe that the people of the society will be
or may be aware of the severe punishments for certain kinds of crimes and
because of this fear in the minds of the people of the society, the people may
stop from committing any kind of crime or wrongful act.

The deterrent theory of punishment is utilitarian in nature. For a better

understanding we can say like, ‘The man is punished not only because he has
done a wrongful act, but also in order to ensure the crime may not be
committed.’

The founder of this theory was Jeremy Bentham. He

said that a man could be deterred from committing a
crime if the punishment applied is swift, certain and
severe. Plato, Locke, Fischte and many more were
supporter of this theory.
Indian Position- Supreme Court accepted this theory
in recent times due to increment in murders, dowry
deaths, rapes etc.
 In Pani Ben Vs State of Gujrat- The Supreme Court
said that it would be absurd if sympathy is shown
for crimes like bride burning is committed and the
court upheld the conviction of the mother in law for
murder by bride burning of daughter -in law.

In State of Madhya Pradesh Vs Ghanshyam the

court observed that the proper sanctioning should
be done according to the crime.

Through making the potential criminals realize that it doesn’t pay to commit
a crime, the deterrent theory hopes to control the crime rate in the society.

rawbacks of the deterrent theory of punishment.

1. Punishment fails to create fear in the mind of criminals once

the punishment is over.
2. This type of punishment fails to create fear in the mind of
hardened criminals.
3. Arouses sympathy in the mind of the public for criminals.
 2. Retributive theory- To give in return.
This theory refers to the crude, barbaric primitive and
animalistic thinking of humans. Retributive means to
given in return. Objective of this theory is to make the
offender to realize suffering or the pain. It considers
punishment as an end itself. The idea of vengeance
revenge) runs through this theory. The Retributive Theory of
Punishment, or the ‘Theory of Vengeance’, as many people in the society
would perceive it as, is the most basic, yet inconsiderate theory of inflicting a
penal sentence over a perpetrator. It is based on a very small doctrine,
namely the doctrine of Lex talionis, which if translated, means ‘an eye for an
eye’. The kingdom of Saudi Arabia practices this theory.
Now, if looked at from the perspective of very serious and heinous offences,
like the Delhi gang rape case, people may feel that it is better to inflict such
retributive punishments, so as to ensure that a deterrent is set across the
society, in order to prevent such crimes in the near future.

However, we forget to understand sometimes that always having a

retributive approach will render the society one with a primitive system of
justice, where the Kings or the Judges were considered to be the supreme
beings and were provided with the stature of God Himself (hence the
address My Lord) and thus, collapse the very concepts of the representatives
being ‘servants’.

Pros and Cons:

Pros-

1. Acts as a strong deterrent.

2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary.
Cons-
 1. Sometimes, may become disproportionate with the seriousness of
the crime.
2. Society develops feelings of vengeance and destructive tendencies
follow.
3. The State may become autocratic in its functioning, using the
punishment to torment people.

Anwar Ahmad v/s. State of Uttar Pradesh and Anr.–

In this case, the convicted had already undergone a six month imprisonment
term, before being officially convicted by the Court. The Court held that since
the convict had been convicted and also, the required ‘blemish’ had also been
imposed upon him, it was not necessary to sentence him again in the name
of ‘retributive punishment’, as it would inflict a very big loss upon the family
as well.

In Jagmohan Singh Vs State of U.P.-

The court observed that Death Penalty serves two
purposes-
a. It satisfies the stint of retribution.
b. It works as a deterrent to like – minded criminals.
 3. Preventive Theory- to refrain.
The idea behind this theory is to keep the offender
away from the society through imprisonment, death
punishment etc in order to prevent repetition of
crime. It follows the principle of " not to avenge crime
but prevented". By keeping them away the society
insures its safety and security. Bentham, Austin
supported this theory because it is human touched.
This theory laid to the formation of present system.

Preventive theory of punishment seeks to prevent prospective crimes by

disabling the criminals. Main object of the preventive theory is transforming
the criminal, either permanently or temporarily. Under this theory the
criminals are punished by death sentence or life imprisonment etc.

The profounder of this theory held that the aim of punishment is to prevent
the crimes. The crimes can be prevented when the criminal and his notorious
activities are checked. The check is possible by disablement. The disablement
may be of different types. Confining inside the prison is a limited form of
disablement, that is temporary and when it is an unlimited form of
disablement, that is permanent. It suggests that imprisonment is the best
mode of crime prevention, as it seeks to eliminate offenders from society,
thus disabling them from repeating the crime. The death penalty is also
based on this theory. This theory is another form of deterrent theory. One is
to deter the society while another is to prevent the offender from committing
the crime. From an overall study, we came to know that there are three most
important ways of preventive punishment, they are as follows:
  By creating the fear of punishment.

 By disabling the criminal permanently or temporarily from

committing any other crime.

 By way of reformation or making them a sober citizen of the

society.

Surjit Singh v State of Punjab: In this case, one of the accused, a policeman
entered the house of the deceased with the intention to commit rape but
failed to do so as the as sons of the deceased shouted for help. Another
accused suggested the policeman to kill the deceased. The accused was held
liable under section 450 of the Indian Penal Code.

While on the contrary, the death penalty or capital punishment is more of a

temporary form of disablement.

4. Reformative Theory-
The reformative theory based upon the principle of
"Hate the Sin, Not the Sinner". The object of this
theory is to reform the sinner; the behavior of the
criminal. The idea behind the theory is that 'no one
is born as a criminal'. It tries to modify the attitude
the offender so he can become a law abiding member
of the society. It is also known as Correctional
Theory or Rehabilitated Theory. Individualized
treatment of the offender becomes the coordinal
principle of this theory. Crime is considered as a
disease and the aim of every punishment should be
reclamation of the offender by prescribing of the
proper treatment. This theory states that
 punishment should be Curative and Medical in
criminal.
While awarding punishment the judge should study the character and age of the
offender, his early breeding, his education and environment, the circumstances
under which he committed the offence, the object with which he committed the
offence and other factors. The object of doing so is to acquaint the judge with the
exact nature of the circumstances so that he may give a punishment which suits the
circumstances.

The advocates of this 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 with good words and mild suggestions.

The reformative theory takes into account serious

factors which lead the person to commit the crime.
For example- his family, education and his socio-
economic background. It tries to find out the causes
and reasons which compels and individual to
commit a crime and then price to eradicate the
criminal tendency by providing appropriate
education to him.

This theory emphasizes that in prison; the prisoner

should be taught and trained so after being released
he can secure a better living. It takes the view that
punishment is justiciable only if looks to the future
not the past.
The reformative theory was born out of the positive theory that the
focal point of crime is positive thinking. Thus, according to this
theory, the objective of punishment needs to be reformation by the
offender.
So, this is not a punishment virtually but rather a rehabilitative
process. Thus, this process helps in making a criminal a good citizen
as much as possible. Furthermore, it makes the citizen a meaningful
citizen and an upright straight man. Reformative theory considers punishment to
be curative more than to be deterrent. According to this theory, crime is like a disease which
cannot be cured by killing rather than curing it with the medicine with the help of process
of reformation.

Scope- Utility of reformative of theory certain cases

1. Incurably corrupt persons
2. Habitual offenders
3. Terrorist
4. Crimes Syndicates
5. Contract Killers
6. Hired criminals
7. Hardcore criminals

In Sunil Batra Vs Delhi Administration-

The court observed that fair treatment will
enhance their personality rather than to affect or
regulate their life.

Narotam Singh v. State of Punjab [v] the Supreme Court 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.

Criticism Drawback-
 Reformative theory is applicable for minor offences
but not to severe crimes.
  It is contrary to the principle the natural justice.
 Every individual has a different mindset. So the
effectiveness is always a question.

5. Expiation Theory- penance.

In Hindu Law it means that the Sin is washed away.
Manu said men who are guilty of crime may
condemn to the king and then only he can go to
heaven as a normal.
'Expiation' means the act of expiating, reparation,
amends and compensation. According to the
Expiation Theory, compensation is awarded to the
victim from the wrongdoer. The criminal is punished
by awarding such compensation and is prevented
from doing such offences in is remaining life. This
also becomes a lesson for remaining public.

Drawback-
 This theory is now obsolete. The principle of
punishment can be considered aced to the
principle/ maxim of old theory.
 This theory is based on moral doctrines and
therefore it is beyond the limits of modern
times and jurisprudence.
 If the expiation is the reason the punishment
then the prisoner should be convicted only
where he is ethically responsible for the offence.

STATE VS. SAYYADUDDIN 1996 AP

Justice Motilal Naik of A.P. High Court gave a sensational judgment on 25-11-1996 covering
this expiation theory. The case particulars are: Sayyaduddin and his brother raided Maslehuddin
due to personal grudges. As a result, Maslehuddin was killed. The High Court imposed three
years imprisonment to the accused and awarded Rs. 60,000/- as compensation payable by the
accused to the family members of Maslehuddin.Delivering the judgment, Justice Motilal Naik
observed:

“By imposing imprisonment on the accused could not be helpful to the family members of the
victim. In my opinion, it is better to help the victim’s family members, as there is no one to look
after them after the death of the bread-earner. Therefore, it is justified to impose a penalty/fine of
Rs. 60,000/- on the accused besides sending him to prison for three years

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