Theories of Punishment

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Theories of Punishment

Written by: Adv. Akarsh Sharma

Before moving further on punishments given in I.P.C and how much appropriate they are by the modern time the first one should know the theories of punishments. There are a few theories of punishments which tells different types and punishments and when they should be given and what effect they put on the offender.

There are four different theories of punishment. These theories are as follows:

  • Deterrent Theory
  • Retributive Theory
  • Preventive Theory
  • Reformative Theory

These four theories tell us about the different methods of punishments and state the effect of punishments on the offenders, and through these theories, it can be determined for what offence which punishment should be given so that the offender can correct itself or improve itself or feel the equivalent pain he has given to someone.

Deterrent Theory

Punishment is primarily deterrent when its object is to show the futility of crime and thereby teach a lesson to others. Deterrence acts on the motives of the offenders, whether actual or potential.

Offences are committed, in most cases, as a result of a conflict between the so-called interests of the wrong-doer and those of society at large. The object of punishment, according to this theory, is to show that, in the final analysis, crime is never profitable to the offender, and as Locke observed, to make a crime “an ill-bargain to the offender.” By making it an ill-bargain to the offender, the world at large would learn that crime is a costly way of achieving an end.

The idea behind deterrent punishment is that of preventing crime, by the infliction of an exemplary sentence on the offender. By this, the State seeks to create fear in its members, and thus deter them from committing a crime through fear psychology. The rigour of penal discipline is made a terror and a warning to the offender and others.

According to the exponents of this theory, punishment is meant to prevent the person concerned and other persons from committing, similar offences. The advocates for the retention of capital punishment rely on this theory in support of their contention. They argue that capital punishment, by its very nature, cannot have either a reformative value or be a retributive necessity. Its only value, if at all, is by way of deterrence.

However, the theory of deterrent punishment fails to achieve its goal. A hardened criminal becomes accustomed to the severity of the punishment, and deterrence does not always prevent him from committing a crime. On the other hand, it also fails to affect an ordinary criminal, as very often, a crime is committed in a moment of excitement. If the crime is pre-mediated, the offender commits the crime, knowing fully well, the consequences arising from his act and performing the act because he cannot help but do it.

Retributive Theory

While discussing the history of the administration of justice, it was seen that punishment by the State is a substitute for private vengeance. In all healthy communities, any crime or injustice stirs up the retributive indignation of the people at large. Retribution means that the wrongdoer pays for his wrongdoing since a person who is wronged would like to avenge himself, the State considers it necessary to inflict some pain or injury on the wrongdoer to otherwise prevent private vengeance.

Whereas other theories regard punishment as a means to some other end the retributive theory looks on it as an end in itself. It regards it as legitimate that evil should be returned for evil, and that a man should be dealt with how he deals with others. An eye for an eye and a tooth for a tooth is deemed to be the rule of natural justice.

Though the system of private revenge has been suppressed, the instincts and emotions that lay at the root of these feelings are yet present in human nature. Therefore, according to this theory, the moral satisfaction that society obtains from punishment cannot be ignored. On the other hand, if the criminal is treated very leniently, or even amid luxury, as the reformative theory would have it. (and as actually happens in some prisons of the world, which are equipped with air conditioning, private toilets, TV sets etc.), the spirit of vengeance would not be satisfied, and it might find its way through private vengeance. Therefore, punishment, instead of preventing a crime, might indirectly promote it.

Unfortunately, the retributive theory ignores the causes of the crime, and it does not strike at the removal of the causes. Mere moral indignation can hardly prevent crime. The criminal may be as much a victim of circumstances as the victim himself might have been.

It is also unfortunate that this theory overlooks the fact that two wrongs do not make a right. The theory also seems to ignore that if vengeance is the spirit of punishment, violence will be a way of prison life

Preventive Theory

If the deterrent theory tries to put an end to the crime by causing fear of the punishment in the mind of the possible crime-doer, the preventive theory aims at preventing crime by disabling the criminal, for example, by inflicting the death penalty on the criminal, or by confining him in prison, or by suspending his driving license, as the case may be.

Thus, the extreme penalty, the death sentence, ensures that once and for all, the offender will be prevented from repeating the heinous act. In the past, maiming was considered an effective method of preventing the wrongdoer from committing the same crime in the future, by dismembering the offending part of the body. Thus, a thief’s hand would be cut off, or a sexual off.

In the ultimate analysis, the preventive model of punishment works in three ways, via)

  1. by inspiring all prospective wrong-doers with the fear of punishment;
  2.  by disabling the wrong-doer from immediately committing any crime; and
  3.  by transforming the offender, by a process of reformation and reeducation, so that he would not commit crime again.

In this connection, the following extract from Rule 58 of the International Standard Minimum Rules is illuminative:

“The purpose and justification of a sentence of imprisonment or a similar measure derivative of liberty are ultimate to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society, the offender is not only willing but also able, to lead a law-abiding and self-supporting life.

Reformative Theory

According to the reformative theory, a crime is committed as a result of the conflict Between the character and the motive of the criminal. One may commit a crime either because the temptation of the motive is stronger or because the restraint imposed by the character is weaker. The deterrent theory, by showing that crime never pays, seeks to act on the motive of the person, while the reformative theory aims at strengthening the character of the main, so that he may not become an easy victim to his temptation. This theory would consider punishment to be curative or to perform the function of medicine. According to this theory, crime is like a disease. This theory maintains that “you cannot cure by killing”.

The exponents of the reformative theory believe that a wrong-doers stay in prison should serve to re-educate him and to re-shape his personality in a new mould. They believe that though punishment may be severe, it should never be degrading. To the followers of this theory, execution, solitary confinement and maiming are relics of the past and enemies of reformation. Thus, the ultimate aim of the reformists is to try to bring about a change in the personality and character of the offender, to make him a useful member of society.

The reformists argue that if criminals are to be sent to prison to be transformed into law-abiding citizens, prisons must be turned into comfortable, dwelling houses. This argument is, however, limited in its application, and it must be remembered that in a country like India, where millions live below the poverty line, it may even act as an encouragement to the commission of crimes.

In Sunil Batra v. Delhi Administration, the Supreme Court regarded a simple letter from a co-prisoner as sufficient to invoke proceedings by way of habeas corpus. The judgment deals at length with the shocking conditions prevailing in Indian prisons and suggests a series of prison reforms. Lamenting on the atrocities prevailing in Delhi’s Tihar Jail, Justice Krishna Iyer, in the course of his learned judgment, observes the follows.

followingle of law meets with its Waterloo when the State’s minions become law-breakers, and so the Court as a sentinel of justice and the voice of the Constitution runs down the violators with its writ, and serves compliance with human rights even behind iron bars and by prison wardens.”

True it is, that the reformative element had long been neglected in the past. However, the present tendency to lay heavy stress on this aspect seems to be only a reaction against the older tendency to neglect it altogether, and has, therefore, the danger of leaning to the other extreme. Whereas reformation is an important element of punishment, it cannot be made, the sole end in itself. It must not be overlooked, but at the same time, it must not be allowed to assume undue importance. In the case of young offenders and first offenders, the chances of long-lasting reformation are greater than in the case of habitual offenders. Again, some crimes, such as sexual offences, are more amenable to reformative treatment than others. Further, reformative treatment is more likely to succeed in educated and orderly societies than in turbulent or under-developed communities

As through these theories, we understood the different types of punishments and their effects on offenders, each theory has its effect which can be applied by the need of time and offence and offender, e.g. Kiran Bedi has applied the reformative theory in all the prisons of India so that a prisoner or offender completing his sentence in prison can reform itself and come out of prison as a better person and will help in society to grow.

As studied earlier about the punishments in I.P.C and how there are some offences where punishment is a payment of fine and in some sections, the amount of fine is prescribed in the act, but the question is whether the fine mentioned in I.P.C is deterrent and appropriate by modern time? And the fine is stated as a punishment not only in I.P.C but in some other Act’s also like Indian Motor Vehicle Act was a fine as punishment is given for traffic violations.

It must be admitted the provisions relating to punishment in the I.P.C have become somewhat obsolescent and out of tune with the modern trends in the field of penology. In I.P.C there is no scope for individualizing the punishment having due regard to the personality of the criminal, rather these five ways of punishments have to be dole out to the offenders. Commenting on this unhappy aspect of our penal system Krishna Iyer, J. observed in Shivaji v. State of Maharashtra “Two men in their twenties thus stand convicted of murder and have to suffer imprisonment for life because the punitive strategy of our Penal Code does not sufficiently reflect the modern trends in correctional treatment and personalized sentencing. When accused persons are of tender age then even in a murder case it is not desirable to send them beyond the high prison walls and forget all about their correction and eventual reformation.”

Just like Justice, Krishna Iyer observed that the penal code of our country is very rigid and there should be a liberal approach, discretion of judges should be there as there are many cases where the punishment is not given by crime but within four walls of law. Like in the case of Navjot Singh Sidhu, “The accused gave one or two fist blows on the head of the deceased in road rage, and later due to the injuries, the person passes away in the hospital. Supreme Court held the accused guilty U/s 323 of I.P.C as the causing of death was not an intention the intention, the intention was to merely cause hurt in rage, so the accused was called guilty and he was punished with a fine of Rs.1000”.

The matter in this case arose is that whether the intention is there or not a person died and the accused got free by just paying a fine of Rs.1000, and the amount of fine is not even in the accordance with the modern time. The I.P.C was created a century ago and the fines and other punishments decided were by those times but there is a change required in the penal law of our country and not only in the penal law but there are many other laws as well which require some deterrent punishments. Let us further see some laws with punishment as fine.

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