Theories of Punishment

Introduction

Punishment. A term which is inherent to criminal justice. It is only because of the

term punishment, that certain acts are classified as ‘crimes’. Down the lane of the
history of the society, we have seen that without punishments, it would have
sometimes been impossible to tame the barbaric, as well as primitive tendencies
of the public. It was the weapon named ‘punishment’, that the rulers used against
their subjects in order to maintain a fear in the minds of the public regarding the
capacities and powers of their rulers. Punishments sometimes were also given as
an insult to someone else. However, the most common punishment from which
all of us are familiar is the scolding or mild beating that we get from our parents.
In that case, what are the theories of punishment actually in case of serious
crimes? How did they develop? What are the pros and cons of the various ways
of punishing people? Do the Hindu scriptures too depict any form of the
punishments mentioned hereinafter? Through this paper, we will try to answer all
such questions and understand how far are the various Theories of Punishment
applicable in the present era. The theories of punishment are as follows:

 RETRIBUTIVE THEORY.

 DETERRENT THEORY.

 PREVENTIVE THEORY.

 INCAPACITATION THEORY.

 COMPENSATORY THEORY.

 REFORMATIVE THEORY.

 UTILITIRIAN THEORY.
Retributive Theory of punishment

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’. 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’. Before we move on to
a deeper understanding of the Retributive Theory, we need to understand two
very important doctrines. Let us have a look at them both.

Doctrine of Societal Personification and the Doctrine of Correctional

Vengeance:

 Doctrine of Societal Personification can be stated as-

‘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.’
A very self-explanatory doctrine. To be put simply, 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.

e.g.: The country-wide protests for the Delhi gang rape case, the current Hathras
rape case, etc.

 Doctrine of Correctional Vengeance maybe stated as-

‘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.’

The above definition, too, is quite self-explanatory in its nature. Now that we
have understood these two doctrines, we have a basic idea about what really is
retributivism or retributive justice. Let us now have a closer look upon the same.

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is
best understood as that form of justice committed to the following three
principles:

1. that those who commit certain kinds of wrongful acts, paradigmatically

serious crimes, morally deserve to suffer a proportionate punishment;

2. that it is intrinsically morally good—good without reference to any other

goods that might arise—if some legitimate punisher gives them the
punishment they deserve; and

3. that it is morally impermissible intentionally to punish the innocent or

to inflict disproportionately large punishments on wrongdoers.’
Case Laws:

1. Nirbhaya Judgement– This case is indeed the first and foremost case to
be mentioned, while talking about retributive justice in India. In this
Judgement, the Supreme Court sentenced four out of six felons involved
in the extremely heinous Delhi gang rape case to death, much to the
delight of the society, as they had committed an extremely gruesome, as
well as morally unimaginable crime.

2. 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.

3. Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was
observed that both deterrent and retributive punishment aim at
prevention of the recurrences of the offences by others passing
exemplary punishment for a particular offence. But the civilization and
the societies are progressing rapidly. There is advancement of science
and technology. The literate people and the experts in different branches
of knowledge started thinking in a different way. Eye for an eye, and
tooth for a tooth are no more considered as the correct approach towards
the criminals. Such principle may perpetuate the rule of the Jungle but
cannot ensure the rule of law.
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.

Deterrent Theory of Punishment

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. Here I used
the phrase “may stop” instead of “will stop”. That means, there is a probability
of committing any crime or repeating the same crime.

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.’
It is best expressed in the word of Burnett, J who said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other
horses may not be stolen”.

Preventive Theory of Punishment

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.

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.

Case Laws:

1. Dr. Jacob George v state of Kerala: In this case, the Supreme Court held
that the aim of punishment should be deterrent, reformative, preventive,
retributive & compensatory. One theory preferred over the other is not
a sound policy of punishment. Each theory of punishment should be
used independently or incorporated on the basis of merit of the case. It
is also stated that “every saint has a past & every sinner has a fortune”.
Criminals are very much a part of the society so it is a responsibility of
the society also to reform & correct them and make them sober citizens
of the society. Because the prevention of crime is the major goal of the
society and law, both of which cannot be ignored.

2. 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.

Incapacitation Theory of punishment

Meaning:

The word “incapacitation” means ‘to prevent the offence by punishing, so that
the future generation fears to commit the criminal act.’ Incapacitation happens
either by removing the person from the society, either temporarily, or
permanently, or by some other method, which restricts him due to physical
inability. One of the most common way of incapacitation is incarceration of the
offenders, but in case of severe cases, capital punishments are also applied. The
overall aim of incapacitation is preventing or restraining the danger in the future.

Definition:

“Incapacitation refers to the restriction of an individual’s freedoms and liberties

that they would normally have in society.”

Purpose of Incapacitation Theory:

One of the primary purposes of this theory is removing the sufficiently dangerous
persons from the society. The risk that is found to be posed by the offenders are
largely a matter of inception. Therefore, if one country treats one offence in one
way, another country will treat the same offence in a different way. For example,
in the U.S., they use incarceration to incapacitate offenders at a much higher rate,
than in other countries. It has been seen that unlike the other theories of
punishments like deterrence, rehabilitation and restitution, the theory of
incapacitation simply rearranges the distribution of offenders in the society so
that the rate of crime decreases in the society. The main aim of the theory of
incapacitation is to dissuade others from the offenders in the past, so that it is not
followed by the future generation.

Application of the theory:

The theory of incapacitation gets reserved only for those people who are either
sentenced to prison or to life imprisonment. Yet, it also includes things like being
supervised by the departments within the community, like probation and parole.
Compensatory Theory of punishment

Definition:

The main look out in the law of crimes is to penalize the criminal, and/or to seek
his reformation and rehabilitation with all the resources and goodwill available
through the Courts and other Governmental and non-Governmental
organizations. It must be seen that the criminals should get proper judgement for
their crimes so caused and the harassment caused to the victim and towards their
family members and property. The victims in a crime can be compensated on
mainly two grounds, namely-

1. A criminal who had inflicted an injury against the person (or group of
persons), or the property must be compensated for the loss caused that
has caused to the victim, and

2. The State that has failed to provide safety towards its citizens, must
receive compensation for the loss caused.
Compensation is the true essence of deterrent, reformative and a necessary
contribution of retribution.

Case Laws:

 In the landmark case of DK Basu v. State of West Bengal the Apex Court
held that a victim who is under the custodial right, has every right to get
compensated as her Right to Life, which is under Article 21 of the
Constitution, has been breached by the officer of the State.
Reformative Theory of Punishment

The idea of the Reformative Theory is hypothesis. As per this hypothesis, the
object of discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn’t stop to be a person. In this way,
an exertion ought to be made to change him/her during the time of his/her
detainment. For example, he may have executed bad behaviour under conditions
which may never happen again. Hence an effort should be made to transform him
during the hour of his confinement. The object of order should be to accomplish
the moral difference in the liable party. He ought to be told and perform some
craftsmanship or industry during the hour of his confinement with the objective
that he may have the alternative to start his life again after his conveyance from
jail.

he Main Purpose Reformative Theory:

The reason for this hypothesis of discipline is to make the criminal languish over
his bad behaviour. Here the motivation behind the discipline is profoundly
customized and rotates around the mental outlet of the person in question or his
family. The primary reason might be accomplished to parole and probation,
which have been acknowledged as current procedures of improving the guilty
parties all around the globe. Consequently, the backers of this hypothesis
legitimize imprisonment not exclusively to separate hoodlums and kill them from
society. Not many of the advanced reformative procedures of discipline are
essentially concocted for the treatment of guilty parties as per their mental
attributes, for example, probation, parole, uncertain sentence, exhortation and
pardon. The reformative techniques have demonstrated to be valuable in the event
of adolescent misconduct, first wrongdoers and ladies. Sex cases additionally
appear to react well to the reformative strategy for discipline. All the more as of
late, the reformative hypothesis is in effect widely utilized as a technique for
treatment of intellectually denied wrongdoers.

Criticism:

1. Reformative theory anticipates better framework and offices in jail,

legitimate co-appointment between various control and diligent exertion
on their part to shape criminals. It requires gigantic ventures which poor
nation can’t bear the cost of.

2. A great many guiltless individuals who have high respects for law are
finding hard to get fundamental courtesies hypothesizes moral
avocation for giving better offices inside jail.

3. Also, the soundness of the hypothesis is more towards motivators for

the commission of wrongdoing instead of counteraction.

4. Transformation can work out on those individuals who can be improved,

there are individuals who can’t be changed like bad-to-the-bone
lawbreaker, profoundly instructed and proficient hoodlums.

Utilitarian Theory of Punishment

The utilitarian hypothesis of discipline tries to rebuff guilty parties to debilitate,

or “hinder,” future bad behaviour. Under the utilitarian philosophy, laws ought to
be utilized to amplify the joy of society. Since wrongdoing and discipline are
conflicting with bliss, they ought to be kept to a base. Utilitarian’s comprehend
that a wrongdoing-free society doesn’t exist, yet they attempt to incur just as
much discipline as is needed to forestall future violations.
The utilitarian hypothesis is “consequentialist” in nature. It perceives that
discipline has ramifications for both the wrongdoer and society and holds that the
all-out great created by the discipline ought to surpass the absolute malevolence.
At the end of the day, discipline ought not be boundless. One delineation of
consequentialism in discipline is the arrival of a jail detainee experiencing an
incapacitating sickness. In the event that the detainee’s demise is fast
approaching, society isn’t served by his proceeded with restriction since he is not,
at this point fit for carrying out wrongdoings.