Theories of Punishment
Written by: Ms Nikita Kumari
INTRODUCTION
Administration of Justice is that the primary functions of the State are mostly divided into the administration of Civil Justice and Administration of Criminal Justice. the most purpose of the Administration of criminal justice is to punish the wrongdoer. it’s the State which punishes the Criminals. From traditional times, a variety of theories are given concerning the aim of punishment.
- Punishment Meaning: Punishment may be a process by which the state inflicts some pain to the persons or property of one that is found guilty of a Crime.
- Object: the thing of Punishment is to safeguard society from mischievous and undesirable elements by deterring potential offenders, by preventing the particular offenders from committing further offences, and by reforming and turning them into law-abiding citizens.
- Theories of Punishments: Theories of Punishment are as follows
(1.) Deterrent Theory
‘To deter’ means, ” to abstain from action/ doing “. Deterrent means, “infliction of severe punishments with punishments with a view to forestall the offender from committing the crime again.”
According to this theory, the article of punishment isn’t to only prevent the wrongdoer from doing a wrong a second time, but also to create him an example to others who have criminal tendencies. Salmond considers the deterrent aspects of criminal justice to be the foremost important for control of crime. A Judge once said: “I do not punish you for stealing the sheep but in order, that sheep might not be stolen.” The aim of punishment isn’t revenge but terror.
According to Manu “penalty keeps the people in restraint, penalty protects them, the penalty remains awake when people are asleep, therefore the wise have regarded punishment may be a source of righteousness”.
According to Paton ” The deterrent theory emphasis the need of protecting society, by so treating the prisoners that others are deterred from breaking the law.
The deterrent theory was the idea of punishment in England within the Medieval Period. Sever and Inhuman punishments were the order of the day and inflicted even for minor offences like pickpocketing and stealing etc. The culprits were subjected to the severe punishment of death by stoning and whipping.
In India during the Mughal period, the penalty of a death sentence or mutilation of the limbs was imposed even for the petty offences of forgery and stealing, etc. Even today in most Muslim countries, like Pakistan, Iraq, Iran, the Asian nation, the deterrent theory is the basis of Penal Jurisprudence.
Criticism:
There is a lot of criticism of the deterrent theory of punishment is present. it’s been criticized on the grounds that it’s proved ineffective in checking crimes and also that excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the general public towards people who are given cruel and inhuman punishment. Hardened criminals don’t seem to be scared of punishment. Punishment losses its horror once the criminal is punished.
(2.) Retributive Theory
’Retributive’ means, punitive or payback or make a return to.” In a Primitive society, the punishment was mainly retributive. The person wronged was allowed to own revenge against the wrongdoer. The Principle of ‘an eye for an eye, a tooth for a tooth ‘, a nail for nail, limb for limb was the idea of criminal administration.
According to Justice Holmes, ‘It is often known that the first types of legal procedure were grounded in vengeance.’
According to Sir John Salmond, the retributive purpose of punishment consists of avenging the incorrect done by the criminal to society.
The idea behind this theory is to form the offender to realize the suffering/pain. The advocates of this theory plead that the criminal need to suffer. The suffering imposed by the State in its corporate capacity is taken into account as the political counterpart of individual revenge. it’s urged that unless the criminal receives the punishment he deserves, one or both of the subsequent effects will result, namely, the victim will seek individual revenge, which can mean lynching (killing or punishing violently), or the victim will refuse to create a complaint or offer testimony and State will therefore be handicapped in addressing criminals. the trendy criminology discards retribution within the sense of vengeance, but within the sense of reprobation, it should always be a necessary element in any type of punishment.
Criticism:
Critics of retributive theory point out that punishment intrinsically isn’t a remedy for the mischief committed by the offender. It merely aggravates the mischief. Punishment is itself evil and may be justified only on the bottom that it yields better results. Revenge is wild justice. Retribution is simply a subsidiary purpose served by punishment.
(3.) Preventive Theory
The preventive theory is additionally referred to as the ‘theory of disablement.’ in keeping with this theory, punishment is predicated on the proposition, “not to avenge crime but to stop it” The aim of this theory is to disable the criminal. Offenders are disabled from repeating the crime by awarding punishments, like death, exile, or forfeiture of an office. By putting the criminal in jail, he’s prevented from committing another crime. The supporters of this theory recognize imprisonment because the best mode of punishment because it is an efficient deterrent and also use caution. Bentham supported the preventive theory due to its humanizing influence on the legal code.
According to Justice Holmes ” There will be no case during which the law-maker makes certain conduct criminal without his thereby showing a wish and purpose to forestall that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you are doing certain things, intending thereby to allow you a replacement motive for not doing them. If you act doing them, it’s to inflict the pains so as that its threats may still be believed.”
According to Paton: ” The Preventive theory concentrates on the prisoner and seeks to stop him from offending again within the future. The executing and exile serve an identical purpose.
Criticism:
Critics point out that Preventative Punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is that the punishment, by putting them within the association of Harden Criminals.
(4.) Reformative Theory
According to the Reformative theory, the thing is of punishment is the reformation of criminals. This theory seeks to evoke a change within the attitude of the offender so on rehabilitate him as a law-abiding member of society. whether or not an offender commits against the law under certain circumstances, he doesn’t cease to be a personality’s being. The circumstances under which he committed the crime might not occur again. The crime could be a mental illness, caused by different anti-social elements. Therefore, the mental cure of criminals instead of awarding punishment will serve the aim. If the criminals are educated and trained, they’ll be competent to behave well within society.
The object of the punishment should be reforming the offender. The criminal must be educated and taught some art or craft or industry during his term of imprisonment, so they’ll be able to lead a decent life and become a responsible and respectable citizen after release from jail. While awarding punishment judge should study the character and age of the offender, his early breeding, family background, his education and environment, the circumstances under which he or she committed the crime, the motive which prompted him or her delight in criminal activities, etc. the item of doing so is to acquaint the judge with the circumstances under which the offence was committed in order that he could award punishment that might serve the ends of justice.
Criticism:
Critics of this theory state that if Criminals are sent to prison to be transformed into good citizens, a jail will now not be a ‘prison’ but a homestead. This theory has been proved to achieve success just in the case of young offenders.
(5.) Expiatory Theory
The expiatory theory of Punishment is predicated on morals. in keeping with this theory, repentance or expiation by the offender itself may be a punishment. If the offender expiates or repents, he must be forgiving. The expiatory theory of punishment was prevalent in the ancient Indian legal code. Expiations were performed by way of uttering mantras, fasting, or maybe burning oneself to death.
(6.) Theory of Compensation
According to the Theory of Compensation, the thing of punishment must not be merely to forestall further crimes but also to compensate the victim of the Crime.
Criticism:
Critics point out that it tends to oversimplify the motive for the crime.
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