Unit-1 Punishment

Introduction
By criminology we mean the science whose purpose is the study of the phenomenon called
criminality, in its entire extent.
The subject-matter, therefore, of the science of criminology is criminality, i.e. the crimes which
are committed and the persons who commit them; the juridical aspect of the problem, i.e. the
legal formulation of the various crimes being at best a matter of indirect interest to the
criminologist.
Introduction
•Criminology
•Penology
•Victimology
Concept and justification of punishment
• Punishment: a sanction given by the government for breaking a specific law of a country or
community.
• Punishment is a means of social contract.
• It is intended to cause some level of suffering to those who breach some laws in place.
• Every society exercises social control over its members in an effort to establish and maintain a
social order that makes it possible for large number of individuals with different personalities,
ambitions, abilities, opinions, interests, values and possessions to live together.
• As societies become bigger, more modern, more complex and more heterogeneous the main
mechanism of social control becomes the criminal law.
• The official reaction to any violation, if the offender is apprehended and convicted typically
includes the imposition of punishment as stipulated by the criminal law of that particular society
or state
• Punishment is “something intended to be burdensome or painful”
• Penal sanctions is an integral part of the criminal law and one of the defining characteristics.
• Such imposition of intentional pain, deprivation, unpleasant and burdensome consequences to
the members of the society in the form of punishment raises ethical and moral questions of
human dignity and human rights in any given democratic setup.
• “crime of punishment” – Karl Menninger
Social Control
• Explains how individuals with different backgrounds, physical and mental abilities,
personalities, wills, interests and desires can live together in a society.
• Social control = control over human behavior
Formal and Informal controls
• Law is the main instrument of formal social control.
• Customs, values and practices govern the informal controls.
Civil and Criminal Law
• Civil law addresses “private grievances”
• Relationships between private individuals
• Any injury or harm caused to the other party has to be compensated usually in the monetary
terms (punitive damages)
• Criminal Law deals with harms committed against the victims considered as detrimental to the
entire society or social order of the society and is regarded as violation against the state or the
entire nation.
• As such acts destroy and seriously damage the fabric of the society.
• The effects are beyond the direct injury to the victim and purposeful societal reaction is
necessary.
• The punishment varies depending on the crimes being inchoate or completed as the
requirements:
• Mens rea and actus reus
• Four stages: Intention, Preparation, Attempt, Accomplishment.
Punishment:
• Punishment is a societal reaction to an act that is considered harmful to the entire society.
• Nullum crimen sine lege = no crime without law
• Nullum poena sine lege = no punishment without law .
• Punishment: “a practice that has been common to virtually all ordered societies, routinely
regarded as essential to social stability. It is also, however, a practice that involves the calculated
infliction on others of serious pain or loss, something we regard as morally prohibited under
normal circumstances.”
Characteristics:
1. Involve pain or other unpleasant consequences.
2. Be imposed for a violation of the criminal code
3. Be administered intentionally
4. Be imposed by the state authorities
• Thus the concept of penology or study of penology deals with legal punishment as opposed to
any other kind of punishment like punishing children for misbehavior, business organization
punishing its workers for rule violations etc.
• A major reason to study and explore the particular subject is its visibility to the public.
Moral tussle with punishment :
• One of the main implications of the ethical and moral concerns about punishment is that it has
to be justified and decided on by a legitimate authority.
• Herber Hart: “the moral justification of punishment lies in its effects – in its contribution to the
prevention of crime and the social readjustment of the criminal”
• In order for the law to be efficient as a social control mechanism in a democratic society, the
majority of people have to believe that “the legal system and the legal authorities are deserving
of compliance.
• The majority of the public must believe in the fairness of the procedures of the legal and
criminal justice systems.
H.L.A Hart defined punishment
• Five elements necessary:
1. It must involve pain or other consequences normally considered unpleasant
2. It must be for an offense against legal rules
3. It must be for an actual or supposed offender for the offense committed.
4. It must be intentionally administered by human beings other than the offender.
5. It must be imposed and administered by a legal system against which the offense is committed
Theories of punishment:
1. Retributive Theory of punishment
2. Deterrent Theory of punishment
3. Preventive Theory of punishment
4. Incapacitation Theory of punishment
5. Compensatory Theory of punishment
6. Reformative Theory of punishment
7. Utilitarian Theory of punishment
Retributive 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’.
• Sometimes, we forget to understand 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’.
Doctrine of Social Personification:
• ‘When a member of the society is subjected to a very heinous crime, as a result of which, the
whole society, as if it were a natural person, considers the offence to be inflicted upon itself,
comes to the defence of that person either by way of demanding justice or by conducting the
same on its own, the society is said to be personified.’
• it means that the society, whenever a heinous crime of an extreme form is committed, assumes
the form of a natural person and behaves in a collective manner so as to get justice.
• Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape case,
Manipur Violence Case, etc.
Doctrine of Correctional Vengeance
• ‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful
(as painful as the original act, or even more) punishments upon the victim for creating a
deterrent, it is said to exhibit correctional vengeance.’
Principles of Retributive Theory:
1. Those who commit certain crimes morally deserve to suffer a proportionate punishment.
2. This punishment is intrinsically morally good if a legitimate punisher gives them the
punishment they deserve. and
3. It is morally wrong and unallowable to intentionally punish the innocent or inflict punishment
that is disproportionate to wrongdoers.
• Retributive justice requires that the punishment be proportionate and meted out at the same
level as the crime. In biblical times, retribution was explained with the example of ‘an eye for an
eye’ or a ‘tooth for a tooth’,
Pros and Cons of Retributive Theory
• Pros
• Acts as a strong deterrent.
• Helps in giving moral justice to the victim.
• Instils the feeling of trust within the society, towards the judiciary.
• Cons
• Sometimes, may become disproportionate with the seriousness of the crime.
• Society develops feelings of vengeance and destructive tendencies follow.
• The State may become autocratic in its functioning, using the punishment to torment people.
Deterrent Theory
• Deterrent theory of punishment was given by the classical philosophers such as Thomas
Hobbes, Cesare Beccaria and Jeremy Bentham
• Dictionary meaning of deterrent is “discouraging”.
• Deterrence can be defined as the preventive effect which actual or threatened punishment of
offenders has upon the potential offenders.
• The very purpose of the selection of this type of punishment on offenders is to deter them from
committing a crime.
• Deterrence acts on the motives of the offenders, whether actual or potential.
• The deterrent theory also seeks to create some kind of fear in the mind of others by providing
adequate penalty and exemplary punishment to offenders which keeps them away from the
criminality. • The state inflicts an exemplary sentence on the offender. Thus the punishment acts
as sufficient warning to offenders as also others.
Deterrent effect of punishment depends on: (John Ball)
• The social structure and value system under consideration.
• The particular population in question
• The type of law being upheld
• The form and magnitude of the prescribed penalty
• The certainty of apprehension and punishment and
• The individuals knowledge of the law as well as prescribed punishment, and his definition of
the situation relative to these factors.
Preventive theory
• The main aim of this theory is to prevent crime. When criminals are kept in jails, they are kept
out of society. The object of this theory is to prevent or disable the offenders from repeating the
offence by giving them punishment. A supporter of preventive theory is Paton.
• Examples of the preventive theory of punishment include death, life imprisonment, forfeiture of
property, etc.
• Drawbacks of the Preventive Theory of Punishment
Fails to fulfil the aim of juvenile offenders and offenders who have committed the offence for the
first time.
• Case Law: Dr Jacob vs the State of Kerala:
The apex court stated that punishment should be deterrent, retributive, preventive, expiatory,
compensatory, incapacitation and utilitarian theory. Preference for one theory over the other is
not a good policy to award punishment.
The preventive mode of punishment can be classified in the following manner;
1. By instilling the fear of punishment
2. By disabling the criminal, permanently or temporarily, from committing any other crime
3. By way of reformation and/or re-education
Temporary and Permanent Disablement
• limited disablement is temporary and unlimited disablement is permanent in nature.
• Imprisonment may be stated as limited disablement, when it is not life imprisonment. Here, the
criminal is being disabled from committing any crimes in the future for only a temporary period
of time.
• Preventive philosophy is the best mode of punishment because it serves as effective deterrent
and also useful preventive measures.
• The effective of preventive theory much depends upon promptness and proportion factors.
• The delay in inquires or investigation by the public authority makes sanction ineffective.
Dr Jacob George v. State of Kerala
• “It was stated, that the purpose of punishment is four-fold. the aim of punishment should be
punitive, reformative, preventive, retributive, and compensatory. It is not a good punishment
policy to favour one hypothesis over the other. Each principle of retribution should be applied
separately or in combination depending on the case’s merits. “Every saint has a history, and
every sinner has a future,” it is often said. Since offenders are an important part of society, it is
also the duty of society to improve and correct them to make them active members of society.
Since crime avoidance is a significant objective of both culture and law, none of which should be
neglected.”
Incapacitation Theory of Punishment
• This theory puts the criminals into the state of being incapacitated to prevent the offence.
• A fear also grows in the minds of the criminals and future generations before attempting to
commit future crimes, thus preventing it.
• Incapacitated means deprived of strength or power.
Continue…
• Example of the incapacitation theory of punishment: Capital punishments and life
imprisonment.
• According to a report by Chicago University, such a theory succeeded in eliminating twenty
percent of the crime.
Compensatory theory
• The theorists of this theory say that the object of punishment is self-realisation. If the offender,
after committing an offence, realises his guilt, then he must be forgiven.
• In other words: This theory relies on compensation to the victim for the loss caused by the
accused. In this way, the offenders are made to realise the same sufferings they have caused to
the victim.
• Example of the expiatory or compensatory theory of punishment: Sukant, who injured Bikash,
undergoes imprisonment where he was made to work and sell his outcomes. The money earned
is provided to Bikash to compensate for his treatment.
European Convention on the Compensation of Victims of Violent Crimes
• Article 2 of the Convention says, “When compensation is not fully available from other sources
the State shall contribute to compensate”.
• Such compensation is to be awarded even if the offender cannot be prosecuted or punished.
• Jeremy Bentham also recognized that compensatory remedies should be object of criminal
justice, which he called it as satisfactory remedies.
Section 357 (1) CrPC, 1973
• empowers court to grant amount to victim of the offence out of fine imposed as part of the
sentence.
• Under section 357(3) of CrPC, court may nevertheless order accused person to pay a certain
sum of compensation to victim where no fine is imposed as part of sentence.
• Compensation is payable to victim of the crime only when fine is not imposed as part of
sentence which is unfair because amount of fine is meager compare to the compensation.
• Moreover, incurred expenses of prosecution are deducted from the fine and remaining amount
is paid to victim of crime, therefore, victim gets small amount that would not amount to justice.
• Courts have generally restored to sentence of fine in addition to imprisonment but
compensation provision is invoked seldom because power is discretionary.
• Further, there is injustice, when ordered payment of compensation is not complied by accused;
there is no provision in law for imposing penalty for such non-compliance.
• On the other hand, non-payment of fine may lead to extension of period of imprisonment
• The Supreme Court in Delhi domestic working women’s forum v. Union of India and others,
• made remarkable direction to the National Commission for Women to draft scheme under
which victim of rape would be given compensation even though accused is not convicted.
• The same should be sent to Union of India for its implementation within six months.
Drawbacks of Compensatory Theory of Punishment
• Oversimplification of the motive of the crime.
• Too idealistic
• Too impracticable in modern society.
State of Gujarat and another v. Hon’ble High Court of Gujarat
• Justice Wadhwa said,
• “Criminal justice would look hollow if justice is not done to the victim of the crime. A victim
of crime cannot be “forgotten man” in the criminal justice system. It is he who has suffered the
most. His family is ruined particularly in case of death and other bodily injuries. An honor which
is lost or life which is snuffed out cannot be recompensed but then compensation will at least
provide some solace”
• Law Commission of India said, “Victim is fortunate if he gets compensation or even his
expenses "and observed that, “Reparation to the victim of an offence has been receiving
increased attention in recent times.
Rudal Shah v. State of Bihar
• for the first time laid down the principle that compensation can be given in the cases where any
fundamental right of an individual has been injured and that the upper courts have the authority
to do so “through the exercise of writ jurisdiction and evolved the principle of compensatory
justice in the annals of human rights jurisprudence.
Central Victim Compensation Fund (CVCF)
• The compensation part of the rehabilitation of victims of violence including rape is governed
by provision of Section 357A of the Code of Criminal Procedure which states that every State
Government in co-ordination with the Central Government shall prepare a scheme for providing
funds for the purpose of compensation to the victim of crime.
Key Objectives of Scheme
• To support and supplement the existing Victim Compensation Schemes notified by States/UT
Administrations.
• To reduce disparity in quantum of compensation amount notified by different States/ UTs for
victims of similar crimes.
• To encourage States/UTs to effectively implement the Victim Compensation Schemes (VCS)
notified by them under the provisions of section 357A of Cr.P .C. and continue financial support
to victims of various crimes especially sexual offences including rape, acid attacks, crime against
children, human trafficking etc.
Eligibility for compensation
• The victim or his dependent satisfying the following criteria shall be eligible for the receipt of
compensation:
1. He/She should not have been in receipt of any compensation for such loss or injury from any
Government authorities or any other scheme of the Central / State Government, for which the
applicant or his dependents shall file a declaration to that effect along with the application form.
2. The loss or injury sustained by the victim or his dependents should have caused substantial
loss to the income of the family making it difficult to make both ends to meet without the
financial aid or which requires such expenditure beyond his means on medical treatment of such
mental/physical injury to the victim
3. Where the offender of the crime is untraceable or cannot be identified, but the victim is
identifiable, the victim or his dependents may also apply for grant of compensation under sub-
section (4) of section 357 A of the Act.
Sr. No Description of injury/loss Minimum amount of compensation
1 Acid Attack Rs. 3 lakhs
2 Rape Rs. 3 lakhs
3. Physical abuse of minor Rs. 3 lakhs
4. Rehabilitation of victim of Human Trafficking Rs. 1 lakh
5. Sexual assault (excluding rape) Rs. 50,000
6. Permanent Disability (80% or more) Rs. 2 lakhs
7. Death Rs. 2lakhs
8. Partial Disability (40 to 80 %) Rs. 1 lakh
9. Burns affecting greater than 25% of the body (excluding acid attack) Rs. 2 lakh
10. Loss of foetus Rs. 1.5 lakh
Note: if the victim is less than 14 years of age, the compensation shall be increased by 50% over
the amount specified above.
Reformative theory
• The main objective of punishment should be to reform the criminal. Kautilya regarded the
object of punishment as reformatory. He felt that crime was inherent in every social set-up and it
spread like a contagious disease from man to man. He, therefore, suggested that the criminal
must be reformed by finally doing away with the criminal tendency in him.
• “Every saint has a past, every sinner has a future.” -V . R. Krishna Iyer, J12. “… the
humanistic approach should not obscure our sense of realities.” When a man commits a crime
against society by committing a diabolical, coldblooded, pre-planned murder of one innocent
person the brutality of which shocks the conscience of the court, he must face the consequence of
his act. Such a person forfeits his right to life.” – A. P . Sen, J13
• According to this theory crime is like a disease.
• This theory maintains that you can cure by killing.
• The ultimate aim of reformists is to try to bring about a change in the personality and character
of the offender, so as to make him a useful member of society.
• But that is the beginning of a new story–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.
• Punishment is, therefore, said to be justified because
• (i) It provides an opportunity for state to take steps to reform offender and control crime.
• (ii) It is both a deterrent and an effective condemnation and as such it has reformative
consequences.
• (iii) The ultimate aim of the punishment is to ‘rationalize’ the offender, to ‘readjust’ him to
society, to ‘rehabilitate’ him or to ‘change him deep inside.
• Criminals are to be ‘treated’ in order to cure them of their sickness and make them emotionally
healthy, law abiding citizens just like the rest of us. The goal of rehabilitation is to re-socialize
offender by building into them the motivation to obey the law .'”
EXISTING LAWS SUPPORTING THE VIEW OF REFORMATIVE THEORY
• Provision is made for a system of probation for First Offenders
• The Probation of Offenders Act, 1958 has been passed with a similar object in view . About the
Act, the Supreme Court observed in Rattan Lal v. State of Punjab that the Act is a milestone in
the progress of the modern liberal trend of reform in the field of penology.
• Section 27 of the Criminal Procedure Code, 1973 provides that any offence not punishable with
death or imprisonment for life committed by any person who, at the date when he appears or is
brought before the court, is under the age of 16 years, may be tried by the court of a Chief
Judicial Magistrate or by any court especially empowered under the Children Act,196 or any
other law for the time being in force providing for the treatment, training and rehabilitation of
youthful offenders.
• Section 360 of the Code of Criminal Procedure, 1973 empowers the court to order the release
on probation of good conduct or after admonition.
Utilitarian Theory of punishment
• The main objective of the utilitarian theory of punishment is that it seeks to punish offenders.
Such a theory aims at discouraging, or ‘deterring’future misconduct.
• Under the utilitarian theory, criminal laws which specify punishment for criminal conduct
should be designed in a way which deters similar future criminal conduct.
• Therefore, it can be seen that deterrence as a concept also operates on two levels, specific and
general.
• In common parlance, general deterrence implies punishment should prevent other people from
committing future criminal acts.
• Therefore, punishment serves as an example for the rest of the social set-up, while also playing
the trump card of putting others on the caveat that criminal behaviour of such and/or similar type
shall be punished accordingly
Review of the Utilitarian Theory
• From a utilitarian viewpoint, activities that advance the satisfaction of the larger part in the
public arena ought to be sought after while those that prevent this bliss ought to be evaded.
• The utilitarian hypothesis can be applied to the issue of the death penalty since this type of
discipline produces both positive and negative results.
Rationalization of Punishment
• The goal of punishment is to deter crime, and each punishment is meant to accomplish two
goals at once: to stop the offender from repeating the act or omission and to deter other members
of society from committing similar crimes.
• Different viewpoints might be taken on the justification and function of punishment in criminal
law, but they typically have five major goals: retribution, deterrence, restoration , rehabilitation,
and incapacitation.
• With the advance of science and knowledge in social disciplines, there has been a wave of
renaissance and reformation throughout the European continent.
• The Declaration of Rights of Man in France in 1787 marked the end of draconian punishments
and the beginning of methodical system of punishment founded on sound principle that right to
punish is limited by the law of necessity.
• This brought about radical changes in the administration of criminal justice.
• In result, penology began to develop as an independent branch of criminal science with new
treatment methods of punishment for the reformation of inmates.
• A scientific approach to crime and criminals has shown beyond doubt that torturous
punishment tends to turn offenders more dangerous and aggressive towards society.
• Alternatively, their rehabilitation through the method of reformation is considered more useful.
• With this end in view, the modern judicial trend is to incorporate correctional methods in the
penal programme so as to bring about rehabilitation and re-socialisation of inmates in the
community.
• Sentencing of offenders being the most crucial aspect of criminal justice system, it has to be
rationalized on humanitarian principles. Explaining the pattern of sentencing to be followed the
Supreme Court in Jamal v. State of Uttar Pradesh, inter alia observed: In operating the
sentencing system, law should adopt the corrective machinery or deterrence based on factual
matrix.
• The sentencing process should be stern where it should be, and tempered with mercy where it
so warrants to be. The facts and given circumstances in each case, the nature of the crime, the
manner in which it was planned and committed, the motive for commission of the crime, the
conduct of the accused, the nature of weapons used and all other attending circumstances are
relevant facts, which would enter into the area of consideration while awarding the sentence.
• The Court further observed that imposing severe punishment or showing undue leniency
should frustrate the cause of sentencing and therefore, 'factual matrix' and gravity of the offence
should form the basis of the punishment.
Thank You