Criminology Assignment Vrushabh Shah- A026

CRIMINOLOGY ASSIGNMENT

Research Paper on:

PUNISHMENT IN INDIA:

REFORMATIVE THEORY OF PUNISHMENT AND ITS

APPLICATION JUVENILE JUSTICE SYSTEM

Submitted by:
Vrushabh Shah- A026- 51001190060

Submitted to:
Dr. Geeta Kubsad

Semester VIII
IVth Year- B.L.S./LL.B

Date of Submission: 10/03/2023

1
 Criminology Assignment Vrushabh Shah- A026

REFORMATIVE THEORY OF PUNISHMENT AND ITS APPLICATION

IN THE JUVENILE JUSTICE SYSTEM

I. INTRODUCTION

Crime is the commission or omission of an act that the law forbids or commands under the
pain of punishment that will be imposed on the wrongdoer. From ancient times it has been
the fundamental duty of the state to protect its citizens. When anyone commits a crime, it is
committed not against a single person but the entire state. One of the primary goals of
criminal law is to impose a sentence that is appropriate, adequate, just, and proportionate to
the nature and gravity of the crime and the way in which it is committed. History suggests
punishments of different forms for different offences out of which some are followed today
while others are abolished. These theories of punishment attempt to explain and justify
punishment from their perspectives. Punishment as per these theories can be deterrent,
retributive, compensatory, reformative, preventive, or expiatory.

The world we live in always majorly has had intellectuals with two identities and outlook
toward crimes and offences one being “an eye for an eye and a tooth for a tooth” aka
Retributive theory and another being “an eye for an eye would make the whole world blind”
aka the Reformative way of punishment. In this paper, we aim at discussing the practical
application and the need for applying Reformative theory of Punishment in cases related to
Juveniles.

II. PUNISHMENT IN ANCIENT INDIA

In India, the Manu planted the seed of criminal law, establishing a comprehensive code of
ordinances dealing with law and order. It was a compilation of people's religions,
philosophies, customs, and practices.
The Shastras are religious and legal textbooks of Hindu Sanskrit literature. Shastras cover a
wide range of topics, including the four main goals of human beings: dharma
(righteousness/law), artha (wealth), kama (desire) and moksha (liberation).3 Punishment
under Dharmashastra is known as danda and it is discussed within the context of criminal
law and the suppression of crime within a kingdom. Another term discussed under
Dharmashastra is prayashchita (Penance). The difference between the two is that penance
suggests that the sinner voluntarily admits that he or she has disobeyed the moral code.

2
 Criminology Assignment Vrushabh Shah- A026

A. Types of Punishment in Ancient India-

i. Capital Punishment- Considered to be one of the harshest forms of punishment,

capital punishment (death penalty) was imposed even for the most basic crimes in
Ancient India. There have been different methods of execution of capital punishment,
such as stoning, pillory, construction into a wall, throwing under an elephant’s leg
etc.
ii. Corporeal Punishment- It was a form of punishment in which the criminal was
subjected to some form of physical harm or anguish in order to prevent him and
others from committing similar crimes. Mutilation, branding, flogging, bilboes, and
imprisonment are examples of corporeal punishment.
iii. Fines- One of the common punishments, it was assigned specially for the breach of
traffic rules, revenue laws, minor crime, compensation to the victims, and the
payment of the costs of prosecution.

III. PUNISHMENT IN MODERN INDIA

With the advancement of time, the lack of proportionality when it came to imposing
punishment was reduced. Proportionality when it comes to punishment was introduced in the
penal code. Punishments now are less harsh and brutal, and the punishment depends on the
severity of the crime. Punishment focuses more on correction rather than to punish. The
modern techniques of reformatory social control are designed to treat offenders according to
their psychological traits, for example, probation, parole, indeterminate sentence, pardon,
etc.9 The Indian Penal Code, 1860, codified during the British rule, lays down the forms of
punishment to be applicable in modern India. The responsibility to maintain law and order
falls upon the judiciary. The procedure to be followed during a criminal trial has been laid
down in the Code of Criminal Procedure, 1973.4 The codification of these acts has led to a
shift from the usage of retributive theory of punishment to the reformative theory of
punishment in India.

A. What is Reformative Theory of Punishment?

Reformative Theory in its simplest form dictates that if a person causes harm to you and you
do the same it is not causing any change to the society or changing somebodies’ life, in a way
it is causing more harm than good, in the basic sense a punishment should be such that the
person, when being punished, learns from it and in any way or form contributes back to the
society and also makes him a better person. Punishment should serve as a means of social
3
 Criminology Assignment Vrushabh Shah- A026

education. The character of the offender should be reformed for him to desire to do what is
right instead of yearning to do what is wrong. Reformative Theory advocates the usage of
community services, counselling, rehab programmes, therapy sessions and varied alternative
strategies. Only in the cases of juvenile delinquency, first offenders, and women have
reformative tactics proven to be effective. In recent years, the reformative approach has
become increasingly popular as a treatment option for mentally disadvantaged offenders. This
present trend to treat the wrongdoer instead of penalising him is termed therapeutic
jurisprudence.

IV. Brief Background of the Juvenile Justice System Prevailing in India

In India According to the National Crime Records Bureau (NCRB) report for 2019, a total of
45,935 juveniles were apprehended in India under various crimes. Out of these, 89.2% were
boys, and 10.8% were girls. The most common offenses committed by juveniles were theft,
burglary, and robbery, followed by rape, rioting and hurt. In India, juvenile homes are known
as observation homes, special homes, and children's homes.

According to a report by the Ministry of Women and Child Development, as of March 2018,
there were a total of 695 juvenile justice institutions in the country, including 127 observation
homes, 419 special homes, and 149 children's homes. These institutions provide care,
protection, and rehabilitation to juveniles in conflict with the law.

A. Application of Reformative Theory of Punishment in the Juvenile Justice System

Looking at the current scenario there is a dire need that the Juvenile Justice in India develops
individualized treatment programs to rehabilitate young offenders. These programs should
incorporate counseling, education, vocational training, and other services to help the juveniles
acquire skills and competence to reintegrate them into the society successfully. Young
offenders need positive role models who can inspire and motivate them to make better choices.
The juvenile justice system should encourage the involvement of mentors who can provide
guidance and support to juveniles during and after their detention.

The reformative theory emphasizes the importance of repairing harm caused by the offender.
Restorative justice practices such as victim-offender mediation and community service projects
can help young offenders understand the impact of their actions and take responsibility for their
behaviour. the reformative theory of punishment emphasizes the importance of rehabilitation

4
 Criminology Assignment Vrushabh Shah- A026

and providing young offenders with the tools they need to become productive members of
society. The juvenile justice system should incorporate these principles into its programs and
policies to help prevent future crime and reduce recidivism rates among young offenders.

There are several Indian case laws that have dealt with juvenile justice and the reformative
theory of punishment. Some of the relevant cases are discussed below:

Case 1: Ashok Kumar v. State of Haryana (1993)

In this case, the Supreme Court of India emphasized the importance of individualized treatment
for juvenile offenders. The case involved a 16-year-old boy who was accused of murder. The
Court observed that juvenile offenders should be treated differently from adult offenders and
that their individual circumstances and needs should be considered while determining the
appropriate punishment. The Court also noted that the goal of the juvenile justice system
should be to reform and rehabilitate juvenile offenders.

Case 2: Gopinath Ghosh v. State of West Bengal (1981)

In this case, the Supreme Court of India emphasized the need for the rehabilitation and reform
of juvenile offenders. The case involved a 17-year-old boy who was accused of murdering his
father. The Court observed that juvenile offenders should be given a chance to reform and that
the goal of the juvenile justice system should be to rehabilitate them rather than punish them.
The Court also noted that the age of criminal responsibility in India is 18 years, which means
that juveniles below that age cannot be held criminally liable for their actions 7.

Case 3:- State of Rajasthan v. Shambhu Kewat (2014)

In this case, the Supreme Court of India emphasized the importance of the reformative theory
of punishment in juvenile justice. The case involved a 17-year-old boy who was accused of
rape. The Court observed that the goal of the juvenile justice system should be to reform and
rehabilitate juvenile offenders and that punishment should be aimed at achieving this goal
rather than seeking retribution or revenge. The Court also noted that the age of criminal
responsibility in India is 18 years, which means that juveniles below that age cannot be held
criminally liable for their actions.

5
 Criminology Assignment Vrushabh Shah- A026

Case 4 : Salil Bali v. Union of India (2013)

In this case, the Supreme Court of India emphasized the need for the speedy disposal of
juvenile justice cases. The case involved a juvenile who was accused of committing a heinous
crime. The Court observed that the juvenile justice system should ensure that cases involving
juvenile offenders are disposed of expeditiously. The Court also noted that the goal of the
juvenile justice system should be to reform and rehabilitate juvenile offenders.

Conclusion

The reformative theory of punishment is an important philosophy that emphasizes the

rehabilitation and reform of offenders rather than punishment alone. This theory has significant
implications for juvenile justice, where the goal is to rehabilitate and reform young offenders.
The Indian justice system has recognized the importance of the reformative theory of
punishment and has emphasized the need for individualized treatment for juvenile offenders.
The case laws discussed in this paper demonstrated the Indian judiciary's commitment to
ensuring that the juvenile justice system is focused on rehabilitation and reform rather than
punishment alone. We need to look at the west and take inspiration from countries like
Belgium and Denmark that have specialized rehabilitation programs for Juvenile Offenders.

6
 Criminology Assignment Vrushabh Shah- A026

References:-

1. Alister Anthony Pareira v State of Maharashtra, (2012)2 SCC 648.

2. Ashika Ranjan, Evolution of the Process of Punishment in India, 4
IJLMH 2999 (2021) http://doi.one/10.1732/IJLMH.26685
3. The Hindu, Four Goals, https://www.thehindu.com/features/friday-
review/religion/four-
4. Ashok Kumar v. State of Haryana - 2008 (1) SCT 755 (P&H)

5. Gopinath Ghosh v. State of West Bengal -1984 AIR 237

6. https://www.britannica.com/topic/retributive-justice

7. NCRB data 2019- https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf

8. https://blog.ipleaders.in/juvenile-justice-system-india/

9. TANENHAUS, DAVID S., and ERIC C. NYSTROM. “‘Let’s Change the Law’:
Arkansas and the Puzzle of Juvenile Justice Reform in the 1990s.” Law and History
Review 34, no. 4 (2016): 957–97. http://www.jstor.org/stable/24771471.

10. Rothchild, Jonathan. “Childhood without Life, Life without Childhood: Theological and
Legal Critiques of Current Juvenile Justice Policies.” Journal of the Society of Christian
Ethics 33, no. 1 (2013): 83–103. http://www.jstor.org/stable/23563067.

11. https://www.indialegallive.com/laws-research-indepth/juvenile-delinquency-in-india/

7
 Similarity Report ID: oid:9832:32182013

PAPER NAME

A026- Criminology RP- REFORMATIVE T

HEORY OF PUNISHMENT AND JUVENILE
JUSTICE SYSTEM.pdf

WORD COUNT CHARACTER COUNT

1970 Words 10690 Characters

PAGE COUNT FILE SIZE

7 Pages 117.8KB

SUBMISSION DATE REPORT DATE

Mar 9, 2023 8:16?PM PST Mar 9, 2023 8:16?PM PST

12% Overall Similarity

The combined total of all matches, including overlapping sources, for each database.
11% Internet database 1% Publications database
Crossref database Crossref Posted Content database
4% Submitted Works database

Excluded from Similarity Report

Bibliographic material Quoted material
Cited material Small Matches (Less then 10 words)

Summary
 Criminology Assignment Vrushabh Shah- A026

CRIMINOLOGY ASSIGNMENT

Research Paper on:

PUNISHMENT IN INDIA:

REFORMATIVE THEORY OF PUNISHMENT AND ITS

APPLICATION JUVENILE JUSTICE SYSTEM

Submitted by:
Vrushabh Shah- A026- 51001190060

Submitted to:
Dr. Geeta Kubsad

Semester VIII
IVth Year- B.L.S./LL.B

Date of Submission: 10/03/2023

1
 Criminology Assignment Vrushabh Shah- A026

REFORMATIVE THEORY OF PUNISHMENT AND ITS APPLICATION

IN THE JUVENILE JUSTICE SYSTEM

I. INTRODUCTION
3
Crime is the commission or omission of an act that the law forbids or commands under the
pain of punishment that will be imposed on the wrongdoer. From ancient times it has been
the fundamental duty of the state to protect its citizens. When anyone commits a crime, it is
committed not against a single person but the entire state. One of the primary goals of
6
criminal law is to impose a sentence that is appropriate, adequate, just, and proportionate to
the nature and gravity of the crime and the way in which it is committed. History suggests
punishments of different forms for different offences out of which some are followed today
while others are abolished. These theories of punishment attempt to explain and justify
punishment from their perspectives. Punishment as per these theories can be deterrent,
retributive, compensatory, reformative, preventive, or expiatory.

The world we live in always majorly has had intellectuals with two identities and outlook
toward crimes and offences one being “an eye for an eye and a tooth for a tooth” aka
Retributive theory and another being “an eye for an eye would make the whole world blind”
aka the Reformative way of punishment. In this paper, we aim at discussing the practical
application and the need for applying Reformative theory of Punishment in cases related to
Juveniles.

II. PUNISHMENT IN ANCIENT INDIA

1
In India, the Manu planted the seed of criminal law, establishing a comprehensive code of
ordinances dealing with law and order. It was a compilation of people's religions,
philosophies, customs, and practices.
The Shastras are religious and legal textbooks of Hindu Sanskrit literature. Shastras cover a
wide range of topics, including the four main goals of human beings: dharma
(righteousness/law), artha (wealth), kama (desire) and moksha (liberation).3 Punishment
under Dharmashastra is known as danda and it is discussed within the context of criminal
law and the suppression of crime within a kingdom. Another term discussed under
Dharmashastra is prayashchita (Penance). The difference between the two is that penance
suggests that the sinner voluntarily admits that he or she has disobeyed the moral code.

2
 Criminology Assignment Vrushabh Shah- A026

A. Types of Punishment in Ancient India-

i. Capital Punishment- Considered to be one of the harshest forms of punishment,

capital punishment (death penalty) was imposed even for the most basic crimes in
1
Ancient India. There have been different methods of execution of capital punishment,
such as stoning, pillory, construction into a wall, throwing under an elephant’s leg
etc.
ii. Corporeal Punishment- It was a form of punishment in which the criminal was
subjected to some form of physical harm or anguish in order to prevent him and
others from committing similar crimes. Mutilation, branding, flogging, bilboes, and
imprisonment are examples of corporeal punishment.
5
iii. Fines- One of the common punishments, it was assigned specially for the breach of
traffic rules, revenue laws, minor crime, compensation to the victims, and the
payment of the costs of prosecution.

III. PUNISHMENT IN MODERN INDIA

With the advancement of time, the lack of proportionality when it came to imposing
punishment was reduced. Proportionality when it comes to punishment was introduced in the
penal code. Punishments now are less harsh and brutal, and the punishment depends on the
severity of the crime. Punishment focuses more on correction rather than to punish. The
2
modern techniques of reformatory social control are designed to treat offenders according to
their psychological traits, for example, probation, parole, indeterminate sentence, pardon,
1
etc.9 The Indian Penal Code, 1860, codified during the British rule, lays down the forms of
punishment to be applicable in modern India. The responsibility to maintain law and order
1
falls upon the judiciary. The procedure to be followed during a criminal trial has been laid
down in the Code of Criminal Procedure, 1973.4 The codification of these acts has led to a
9
shift from the usage of retributive theory of punishment to the reformative theory of
punishment in India.

A. What is Reformative Theory of Punishment?

Reformative Theory in its simplest form dictates that if a person causes harm to you and you
do the same it is not causing any change to the society or changing somebodies’ life, in a way
it is causing more harm than good, in the basic sense a punishment should be such that the
person, when being punished, learns from it and in any way or form contributes back to the
society and also makes him a better person. Punishment should serve as a means of social
3
 Criminology Assignment Vrushabh Shah- A026

education. The character of the offender should be reformed for him to desire to do what is
right instead of yearning to do what is wrong. Reformative Theory advocates the usage of
2
community services, counselling, rehab programmes, therapy sessions and varied alternative
7
strategies. Only in the cases of juvenile delinquency, first offenders, and women have
reformative tactics proven to be effective. In recent years, the reformative approach has
2
become increasingly popular as a treatment option for mentally disadvantaged offenders. This
present trend to treat the wrongdoer instead of penalising him is termed therapeutic
jurisprudence.

IV. Brief Background of the Juvenile Justice System Prevailing in India

In India According to the National Crime Records Bureau (NCRB) report for 2019, a total of
45,935 juveniles were apprehended in India under various crimes. Out of these, 89.2% were
boys, and 10.8% were girls. The most common offenses committed by juveniles were theft,
8
burglary, and robbery, followed by rape, rioting and hurt. In India, juvenile homes are known
as observation homes, special homes, and children's homes.

According to a report by the Ministry of Women and Child Development, as of March 2018,
there were a total of 695 juvenile justice institutions in the country, including 127 observation
homes, 419 special homes, and 149 children's homes. These institutions provide care,
protection, and rehabilitation to juveniles in conflict with the law.

A. Application of Reformative Theory of Punishment in the Juvenile Justice System

Looking at the current scenario there is a dire need that the Juvenile Justice in India develops
individualized treatment programs to rehabilitate young offenders. These programs should
incorporate counseling, education, vocational training, and other services to help the juveniles
acquire skills and competence to reintegrate them into the society successfully. Young
offenders need positive role models who can inspire and motivate them to make better choices.
The juvenile justice system should encourage the involvement of mentors who can provide
guidance and support to juveniles during and after their detention.

The reformative theory emphasizes the importance of repairing harm caused by the offender.
Restorative justice practices such as victim-offender mediation and community service projects
can help young offenders understand the impact of their actions and take responsibility for their
behaviour. the reformative theory of punishment emphasizes the importance of rehabilitation

4
 Criminology Assignment Vrushabh Shah- A026

and providing young offenders with the tools they need to become productive members of
society. The juvenile justice system should incorporate these principles into its programs and
policies to help prevent future crime and reduce recidivism rates among young offenders.

There are several Indian case laws that have dealt with juvenile justice and the reformative
theory of punishment. Some of the relevant cases are discussed below:

4
Case 1: Ashok Kumar v. State of Haryana (1993)

In this case, the Supreme Court of India emphasized the importance of individualized treatment
for juvenile offenders. The case involved a 16-year-old boy who was accused of murder. The
Court observed that juvenile offenders should be treated differently from adult offenders and
that their individual circumstances and needs should be considered while determining the
appropriate punishment. The Court also noted that the goal of the juvenile justice system
should be to reform and rehabilitate juvenile offenders.

Case 2: Gopinath Ghosh v. State of West Bengal (1981)

In this case, the Supreme Court of India emphasized the need for the rehabilitation and reform
of juvenile offenders. The case involved a 17-year-old boy who was accused of murdering his
father. The Court observed that juvenile offenders should be given a chance to reform and that
the goal of the juvenile justice system should be to rehabilitate them rather than punish them.
The Court also noted that the age of criminal responsibility in India is 18 years, which means
that juveniles below that age cannot be held criminally liable for their actions 7.

Case 3:- State of Rajasthan v. Shambhu Kewat (2014)

4
In this case, the Supreme Court of India emphasized the importance of the reformative theory
of punishment in juvenile justice. The case involved a 17-year-old boy who was accused of
rape. The Court observed that the goal of the juvenile justice system should be to reform and
rehabilitate juvenile offenders and that punishment should be aimed at achieving this goal
rather than seeking retribution or revenge. The Court also noted that the age of criminal
responsibility in India is 18 years, which means that juveniles below that age cannot be held
criminally liable for their actions.

5
 Criminology Assignment Vrushabh Shah- A026

Case 4 : Salil Bali v. Union of India (2013)

In this case, the Supreme Court of India emphasized the need for the speedy disposal of
juvenile justice cases. The case involved a juvenile who was accused of committing a heinous
crime. The Court observed that the juvenile justice system should ensure that cases involving
juvenile offenders are disposed of expeditiously. The Court also noted that the goal of the
juvenile justice system should be to reform and rehabilitate juvenile offenders.

Conclusion

The reformative theory of punishment is an important philosophy that emphasizes the

rehabilitation and reform of offenders rather than punishment alone. This theory has significant
implications for juvenile justice, where the goal is to rehabilitate and reform young offenders.
The Indian justice system has recognized the importance of the reformative theory of
punishment and has emphasized the need for individualized treatment for juvenile offenders.
The case laws discussed in this paper demonstrated the Indian judiciary's commitment to
ensuring that the juvenile justice system is focused on rehabilitation and reform rather than
punishment alone. We need to look at the west and take inspiration from countries like
Belgium and Denmark that have specialized rehabilitation programs for Juvenile Offenders.

6
 Criminology Assignment Vrushabh Shah- A026

References:-

1. Alister Anthony Pareira v State of Maharashtra, (2012)2 SCC 648.

2. Ashika Ranjan, Evolution of the Process of Punishment in India, 4
IJLMH 2999 (2021) http://doi.one/10.1732/IJLMH.26685
3. The Hindu, Four Goals, https://www.thehindu.com/features/friday-
review/religion/four-
4. Ashok Kumar v. State of Haryana - 2008 (1) SCT 755 (P&H)

5. Gopinath Ghosh v. State of West Bengal -1984 AIR 237

6. https://www.britannica.com/topic/retributive-justice

7. NCRB data 2019- https://ncrb.gov.in/sites/default/files/CII%202019%20Volume%201.pdf

8. https://blog.ipleaders.in/juvenile-justice-system-india/

9. TANENHAUS, DAVID S., and ERIC C. NYSTROM. “‘Let’s Change the Law’:
Arkansas and the Puzzle of Juvenile Justice Reform in the 1990s.” Law and History
Review 34, no. 4 (2016): 957–97. http://www.jstor.org/stable/24771471.

10. Rothchild, Jonathan. “Childhood without Life, Life without Childhood: Theological and
Legal Critiques of Current Juvenile Justice Policies.” Journal of the Society of Christian
Ethics 33, no. 1 (2013): 83–103. http://www.jstor.org/stable/23563067.

11. https://www.indialegallive.com/laws-research-indepth/juvenile-delinquency-in-india/

7
 Similarity Report ID: oid:9832:32182013

12% Overall Similarity

Top sources found in the following databases:
11% Internet database 1% Publications database
Crossref database Crossref Posted Content database
4% Submitted Works database

TOP SOURCES
The sources with the highest number of matches within the submission. Overlapping sources will not be
displayed.

ijlmh.com
1 4%
Internet

sbhambriadvocates.com
2 2%
Internet

core.ac.uk
3 1%
Internet

img1.wsimg.com
4 1%
Internet

blog.ipleaders.in
5 1%
Internet

kenyalaw.org
6 <1%
Internet

National Law University New Delhi on 2021-11-21

7 <1%
Submitted works

bppj.berkeley.edu
8 <1%
Internet

Sources overview
 Similarity Report ID: oid:9832:32182013

The WB National University of Juridical Sciences on 2016-09-24

9 <1%
Submitted works

Sources overview