Theories of Punishment

Theories of Punishments

Author: Zainul Rizvi

WHAT IS PUNISHMENT?

Section 53 of the Indian Penal Code enumerates various kinds of punishments to which the offenders are liable under the Penal Code. The main purpose of the administration of criminal justice is to punish the offenders. It is the state which punishes criminals. Punishment is the suffering in person or property inflicted by the society on the offender who is adjudicated guilty of a crime under the law.

The age of the accused may also be taken into consideration in mitigation of the punishment. In the case of Ujjagar Singh vs Union of India[1], where the accused was only 17 years old when the offence was committed, the sentence of death may be commuted to life imprisonment in consideration of his extremely young age.

In State of Punjab vs. Mann Singh[2], it was held that it was the duty of the Court in every case to award a proper sentence having regard to the nature of the offence, the manner in which it was committed and to all the attendant circumstances.

THEORIES OF PUNISHMENT

Various theories are advocated to explain the purposes of punishment.

RETRIBUTIVE THEORY

The origin of the retributive theory lies in the primitive notion of vengeance against the wrongdoer. ‘Punishment’ satisfies the feeling of revenge. In olden times, when a man injured another, it was the right of the injured person to take revenge on the person causing injury. In those days, ‘An eye for an eye and a tooth for a tooth’ was considered to be the law. Kant says that justification of punishment lies in the fact that evil has been done by him who suffers it.

In modern times, retribution is used in more than one sense. In the first sense, the idea is that of satisfaction by the State of the wronged individual’s desire to be avenged. In the second, it is that of the States marking its disapproval of the breaking of its laws by a punishment proportionate to the gravity of the offence.

This theory has been criticized by Sheldon Glueck who says that it is natural that we hate criminals, but to base, the policy of social protection upon the hatred of those who commit such acts is both uneconomical and unjust.[3] On the contrary, Stephen justifies that hating the criminal is morally right. In his opinion, “Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite.”[4]

The retributive theory considers punishment as an end in itself although the modern trend of penologists is to regard punishment as a means to an end and not an end in itself. Prof. J. D. Mabbott while rejecting the traditional retributive theory presents his own theory of retribution. In his opinion, the only justification for punishing any man is that he has broken a law. He treats punishment as a purely legal matter. The connection on which he insists is that “between punishment and crime, not between punishment and moral or social wrong.”

Thus, the ethical approach to crime which is the main basis of the retributive theory is gradually losing ground in modern times.

            DETERRENT THEORY

The term ‘deter’ means ‘to abstain from doing an act’. The purpose of the punishment is to deter the criminals from committing the crime in the future and to set an example that the other also who will commit the crime will be punished likewise. Considering this point of view, punishment is a means of attaining social security as it seeks to prevent society from deterrent potential offenders. The criminal seems so much used to the prison that they have lost all interest in leading a normal life in a society.

If punishment really serves as a deterrent then severe punishment is justified because it would create greater fear but we find that even more severe punishments have failed to eliminate crimes. This theory does not prescribe any measure of punishment which will serve as effective deterrence. Therefore, Holmes criticizes this theory of being immoral in as much as the measure of punishment is based on the lawgiver’s subjective opinion.[5]

Thus, the punishment has a little deterrent effect upon the offender who has suffered the penalty.

Preventive Theory

According to this theory, the purpose of the punishment is to serve the preventive measure in a commission of a crime such as life imprisonment, forfeiture, death punishment, etc. This theory concentrates on the prisoner but prevents him from offending again in the future. It presupposes that the need for punishment for crime is simply out of societal necessities.

In ancient times, the offender was prevented from crime again by disabling him permanently. For example, the punishment for theft was cutting off the hand of the offender. Therefore, the death penalty is considered to be the appropriate punishment for such offences. In modern times, some other measures of prevention are also applied, such as forfeiture of office, suspension, and cancellation of licenses for dealing in goods or driving, etc.

Expiatory Theory

Expiatory Theory is also known as the ‘theory of penance’. According to this theory, punishment is necessary for the purification of the offender. It is a kind of expiation or penance for misdeeds of a person.

Manu says: “Men who are guilty of crimes when condemned by the King become pure and go to heaven in the same way as good and virtuous men go.” In modern times, the expiatory theory is accepted in a modified form and is considered by some to be a part of the retributive theory. Expiation is akin to the idea of retribution. In this view, crime is done away with or blotted out by the suffering of its appointed penalty. Guilt plus punishment is equal to innocence. The fact that in the expiatory theory satisfaction is conceived as due rather to the outraged majesty of the law than to the victim of the offence merely marks a further stage in the refinement and the purification of the primitive conception.[6] Salmond calls this kind of satisfaction of debt as purely abstract payment which men have no moral right to enforce.

Under this theory, it is believed that if the offender expiates or repents and realizes his mistake, he must be forgiven.

Reformative Theory

Reformative Theory is also known as ‘corrective’ or ‘rehabilitation theory’. ‘Reformation’ means ‘the effort to restore the man to society as a better or wiser man and as a good citizen.’ The idea behind this theory is that “no one is a born criminal and criminals are also humans.”

In modern times, reformative measures are adopted in cases of juvenile offenders. In prison, they are given some education and are subjected to some such prison programs so that they can learn some kind of work that may help them in earning their livelihood after coming out of the prison.

Under this theory, it is believed that if the criminals will be trained and educated, they will transform into law-abiding citizens. This theory maintains that crime is a kind of disease, and the criminals should be treated well, so that they may be able to recover from this disease. This theory has been proved successful and is accepted by many jurists.

CONCLUSION

In India, a Reformative Theory of punishment is followed. According to the reports of the Hindustan Times, the total number of repeat criminal offence if counted is approx. 2,44,364 as Jharkhand leads with 35.5%, followed by Chhattisgarh with 17%, Andhra Pradesh with 16.3%, and the Union Territory of Delhi with 15.8%. Thus concluding, the theories of punishment need to be changed from reformative to retributive as it would create fear in the minds of the wrongdoer and curb the increasing crime rate in the country as the sole principle of retributive and deterrent theories is “reap what you sow”.

A three-Judge Bench of the Supreme Court in Ahmad Hussein Vali Mohd Saiyed vs. the State of Gujarat,[7] observed:

“The object of awarding appropriate sentences should be to protect society and to deter the criminal from achieving the avowed object of lawbreaking by imposing appropriate sentences. The Courts should operate the sentencing system so as to impose such sentences that reflect the conscience of the society and the sentencing process has to be stern where it should be. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be the result – wise counterproductive  in the long run and against interests of society which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.”

If the sentence of the accused is reduced to the period undergone in a casual manner, the accused, who commits a heinous crime against women will be emboldened and dare to repeat crime, which will be totally detrimental to society.[8]

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[1] 1981 Cri. L. J. 1690 (S.C.)

[2] 1983 Cri. L. J. 229 (S.C.)

[3] 41 H.L.R. 543, Insanity and Criminal Law, pp. 13-14.

[4] Stephen, History of Criminal Law, Vol. II, pp. 81-82.

[5] Holmes, Common Law, pp. 42-43.

[6] Ibid. at p. 100.

[7] AIR 2010 SC (Supp.) 846.

[8] Purshottam Borate vs. State of Maharashtra, AIR 2015 SC 2170