Punishment is the imposition of a penalty for wrongdoing. Several theories justify punishment, each with distinct goals and principles. These theories include deterrent, retributive, preventive, reformative, expiatory or compensatory, incapacitation, and multiple approach.
There are five theories of punishment.
1) deterrent theory,
2) retributive theory,
3) preventive theory
4) reformative theory.
5) Expiatory or Compensatory Theory
Objects of punishment
To protect society from mischievous elements by deterring potential offenders.
To prevent actual offenders from committing further offences.
To eradicate evils and reform criminals to turn them into law-abiding citizens.
To administer justice partly by inflicting pains, to deter criminals and others from indulging in crime and partly by reforming criminals.
To maintain rules of law necessary for a crime-free country.
Deterrent theory of punishment
This theory is developed by Beccaria and Jeremy Bentham.
(I) It based on the principle that a man would be deterred from committing a crime if the punishment applied/ inflicted is swift, certain, and severe.
(ii) It focuses on deterring offenders from criminality or repeating the same crime in the future.
(iii) It intent to creates fear of punishment in like-minded people.
(iv) It is a lesson to members of society who experience the consequences of that crime.
There should be a nexus between the crime committed and the punishment inflicted for that.
While deciding on the punishment, the following should be taken into consideration;
1) Seriousness of the crime – Punishment should be given according to the seriousness of the crime committed, for e.g one can’t award a death sentence for pickpocketing. Principle of proportionality.
2) The gravity of crime & victim’s satisfaction –
3) Impact of punishment on minds of the general public – . Are they taking lessons from that? For example, traffic police are collecting fines for not wearing helmets, but do people follow this rule? Are they really serious about fines and rules?
State of H.P.v. Nirmala Devi (2017)
SC had opined that if the crime done is heinous and against society then the deterrent theory becomes more relevant. In such cases, the role of mercy, forgiveness and compassion becomes secondary.
Criticism of deterrence theory.
1. It is ineffective in checking crimes
Though this theory intends to deter people from committing crimes or repeating the same crime, however it has failed to serve its purpose. It has proved ineffective in checking crimes.
2. . Purpose defeated by Excessive harshness of punishment---arousing the public’s sympathy-
Excessive harshness of punishment tends to defeat its purpose by arousing the public’s sympathy towards those who are subjected to such punishment.
3. No proof of Efficacy of deterrence--For example, in the Delhi gang rape case, familiarly known as the Nirbhaya case, all 4 accused were hanged for their heinous crime but the offence of rape continues to happen. Thus the question as to whether the deterrent theory of punishment serves its purpose.
4. It does not give a chance to reform the accused.
Retributive theory of punishment.
This theory is based on the famous saying that a ‘Tit for Tat’, ‘ Eye for Eye’ or’ Teeth for Teeth’.
The main motive of this theory is to inflict a similar amount of pain endured by the aggrieved party , because of the offender’s activity.
This theory is harsher than other theories. On humanitarian grounds, this theory of punishment is not acceptable . This type of punishment was banned.
Criticism of the retributive theory.
It is difficult to determine the proportion of pain - as to what and to what extent the pain should be returned.
Promote Vengeance which is not permissible in Civil Society.
In this theory there is no Balancing. Principle of balancing of aggravating and the mitigating factors while awarding punishment
Against the principle ofNatural justice. It causes harm to the accused in a greater way.
5. Intent of Punishment to restore peace and harmony in society is not achieved.
Ramdeo Chahun v State of Assam.2000.In this case,it is held by Supreme Court that
Though eye for eye,tooth for tooth, and death for death is not acceptable in Civil society , but it is equally true that when a man becomes beast and a menace to the society , then he can be deprived of life, according to procedure established by law.
Preventive theory.
Unlike other theories, this theory aims to prevent crime rather than take revenge.(Separation of the offender)
When we were in school, our teachers used to make the mischievous students stand out of the classroom, for disturbing the whole class. This punishment by the teacher prevents other students from disturbing the class due to fear of punishment.
In the same way, this theory talks about eliminating( Exclusion) the accused from society, to prevent the repetition of crime.
Society protects itself against criminals by excluding them and prevents other prospective offenders from committing crimes.
Prevention of these criminals can be done by giving them death punishment or life imprisonment.
Reformative theory of punishment.
Nobody is a criminal by birth. Crimes sometimes happen accidentally or due to his or her peculiar situation.
In this theory, Crime is like a disease. Punishment should be curative. You cannot cure by killing. Punishment should be curative enough to reform the offender.
The offender should get another chance to rectify his mistake.
Aim, is rehabilitation and reformation of offender into into law-abiding citizen.
This theory condemns all forms of corporal punishments.
Prisons, correctional homes should humanly treat the law offenders/inmates in such a way so that after their release, they can lead a life like a normal citizens.
The main object of this theory is the rehabilitation of inmates. This theory provides the Mechanism of Benefit of Probation of offenders Act, remission and parole,etc.
Ultimate aim to make an inmate a normal member of society by developing his character.
Musa Khan v. State of Maharashtra (1976)
Supreme Court observed that the reformative system prevented juveniles from becoming hardened criminals.
Dharambir v. State of Uttar Pradesh (1979)
In Dharambir v. State of U.P. 17, the Apex Court supported the institutions of open prisons as such prisons, the court observed, had certain advantages in the context of young offenders who could be protected from some of the well-known vices to which young inmates were subjected to in ordinary jails.This case became the initiation of the concept of open jails in India which generally helps in reforming young offenders.
Criticism surrounding the reformative theory of punishment
This theory only works for juvenile and first-time offenders and not for hardened criminals who have committed multiple crimes.
The reformative theory of punishment is sometimes considered not justifiable for the aggrieved party subjected to prejudice by the offender.
Expiatory or Compensatory Theory
This theory emphasizes self-realization and compensation to the victim. If an offender realizes their guilt, they should be forgiven, and compensation should be provided to the victim for the losses incurred. For example, an offender might work to earn money to compensate the victim for their treatment.
Conclusion
The main purpose behind inflicting punishment on the offender is to restore law and order in society. In this process of awarding punishment, both the interest of the aggrieved party as well as the accused needs to be taken into consideration.
One must not forget that awarding punishment should be directly proportional to the gravity of the crime caused by the offender. Principle pf proportionality. Need to curb crime from happening at a rampant rate in society, punishment needs to be awarded.
These theories helped the legislators and the judiciary frame and interpret provisions of punishment, respectively.
Dr Jacob George vs State Of Kerala (Miscarriage case section 314 IPC
According to the Supreme Court' the ultimate goal of punishment should be deterrent, reformative, retributive, preventive, as well as compensating.
It wouldn't be a fair punishment if one theory were to be preferred over others.
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