Theories of Punishment

Theories of Punishment

Author – Smruthi A Y , a Student of Ramaiah College of Law 

Abstract: 

No Country is crime free every country has its crimes and different methods of punishing the criminal. Punishment is the suffering something unpleasant in response to behavior considered wrong by an individual or group. Punishment can involve a range of actions, from frowns to the death penalty. While punishment inherently involves the infliction of some form of hardship in response to a crime, the underlying rationale for the use of punishment varies widely across different theories of Punishment. Some theories favor the use of punishment as a means of deterring potential offenders, while others see the continued punishment of offenders as the only appropriate response to criminal or anti-social behavior. By tangibly defining the implicit understandings of Punishment that motivate the judicial systems of the world, the theories of punishment serve as foundation upon which these systems stand. The four theories of punishment are: Deterrent theory, Preventive theory, Retributive theory, and Reformative theory. The philosophical and legal question about what ought to be the criteria of punishment has long vexed the Common Law Jurisprudence. This paper discusses the various theories of punishment under Criminal Law and the scope of its application in India with emphasis on the Supreme Court Decisions.

Introduction: 

Punishment is a process by which the state enforces a behavioral change in the offender by causing them to suffer the unpleasant consequences of having broken the law, through the infliction of pain or deprivation, which serves as a deterrent.

Importance of Theories of Punishment: 

Theories of punishment plays an important role in shaping principles and practices of legal systems around the world. The theories provide a conceptual framework for understanding the purposes and goals of punishment in the society. 

Theories of punishment helps to guide the development and implementation of laws they also provide a foundation for lawmakers and legal scholars to create and refine policies which are related to crime and punishment. 

Punishment theories often have philosophical underpinnings that explore fundamental questions about justice morality and role of the state in maintaining order these theories also contribute to the  broader discourse on ethical and moral principles within the society. 

They also reflect the values and priorities of the society and emphasizes different goals of punishment based on their cultural and historical context.

Theories of punishment is divided into four main types i.e. 

1. Retributive theory 
2. Deterrence theory 
3. Preventive theory 
4. Reformative theory 

Retributive theory:

 In ancient systems, retribution for wrongdoing was precedence over the enforcement of rights. A sense of natural law demanded that a criminal should be punished with similar loss and pain that they inflicted on their victim. Therefore, the concept of lex talionis (an eye for an eye) was common in ancient law. The Roman lawyer and philosopher Cicero proposed that “the punishment should fit the offence”. 

In 19th century, the philosopher Immanuel Kant argued that retribution is legitimate form of punishment the court can prescribe. 

Principles of retributive theory:  

According to Stanford Encyclopedia of Philosophy, retributive justice is committed to three principles:

One those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer punishment.”

Two those who commit certain kind of wrongful act and deserve punishment for that. 

And lastly those who morally impermissible intentionally to punish the innocent. 

Proportionality: Proportionality requires level of punishment to be  related to the severity of the offending behavior. However, that does not mean that punishment has to be equivalent to the crime. A retributive system must punish severe crimes harshly than minor crimes, but retributivists differ about how harsh or soft system should be overall. The level of severity can be determined in multiple ways. Severity can be determined by amount of harm, unfair advantage or moral imbalance that the crime has caused. 

Advantage of retributive theory: 

1. Emphasizes proportional punishment: It focusses on the punishment to only those who ‘deserve’ it. Unlike other theory, an innocent can never be punished. Since they are backward-looking, they are not concerned with possibility of a person committing a crime. For example, if a person stole a sum of money should not only give back the money but also suffer to the extent, he made the victim suffer. 
2. Retributive punishment sends a message: This theory sends out a message to the society that if they do any wrong, they have to face the consequences. Due to the fear created the crime rate had decreased.   
3. Not meting out to punishment is unfair to victims and society: All legal systems recognize the need of punishment in response to crimes. If the perpetrators of crime are allowed to walk free or pay money and escape punishment, that would mean that they have not committed any wrong. The unfair advantage that they would have gained by seeking recourse to illegal methods would not be paid back or annulled if any such situation arises.

Criticisms of retributive theory: 

The very nature of morality being subjective makes it difficult to deliver punishments for the crimes. The immorality of crimes needs to be compared. A society has its citizens adhering to very different conceptions of good and the bad. For some people using drugs is a matter of personal liberty while for some it is seen to be a reprehensible act. The very question of setting a common moral standard seems to be a bit fair since it involves asserting one’s view over the others. Hence the process of unifying morality for ‘punishing evil’ is complicated.

Another problem is dealing with amoral crimes. Most of the crimes are both illegal and immoral like rape, murder, etc. then there are crimes like traffic offences which can be called illegal but cannot be said immoral. In these crimes, the punishment cannot be set proportional to the wickedness of crime because of the absence of wickedness.  

Deterrence theory: 

Deterrence theory explains people commit crime and how severe punishment can be given to them. It also explains which factors influence likelihood of committing crime. This theory was developed during the cold war between the US and the Russia as a way to stop them from using the nuclear weapons. 

There are two types of deterrents which are used they are specific and general deterrents. 

General deterrent states that the punishment will be imposed  directly on the people who are involved in the crime. 

Specific deterrent states that the punishment is given to those who committed crime to deter others from committing the crime. 

Deterrence theory has 3 components certainty, celerity, and severity.

Certainty says that the person must know that the punishment will be imposed.

Celerity states that the  punishment must be imposed quickly so it will not be late to avoid the consequences.

Severity says that the punishment must be severe enough to stop people from committing crime.

The theory has received a lot of criticism because it makes three assumptions. It assumes that the people:

1. Know what are the  penalties for the  crime 

2. Have control over their actions

3. Make choices about their behavior based on logic, and not passion

Drawbacks of deterrent theory: 

This theory failed because the victims in the cases of murder, rape, etc., were helpless and the accused were not reported.  Despite all kinds of deterrents, criminals still act on whim at times. Penalties and sanctions have simply become a mere obstacle that criminals have to overcome. This is not what the Indian criminal justice system needs. Despite these harsh penalties and fines, the criminal cases number has been increasing.

Some of the major drawbacks are:

1. The Punishments do not create fear in the criminal’s mind as soon as o the punishment gets over.  

2. This  punishment does not create fear in the offenders’ minds.

3. It creates sympathy for criminals in the minds of people.

For example, after the verdict in the case of Mukesh & Anr v. State for Nct of Delhi & Onr (2017) the rape cases continued to rise.

Preventive theory: 

Justice Holmes, an American jurist states that there can be no case in which the maker of law makes certain criminal conduct without showing wish and purpose to prevent the conduct. Prevention, is the only universal purpose of punishment. It threatens certain pains and if one does certain things, intending to give a new motive for not doing them. If one persists to do them, one has to inflict the pain in order that the threats may continue to be believed.

The main aim of the theory  is to prevent further crimes being committed, which is done by disabling the criminal – holding him/her in custody or inflicting some kind of pain for the crime he/she has committed.  Prevention can be exercised in three ways:

1. By installing fear of punishment in the mind of the offender

2. By disabling the offender, either permanently or temporarily

3. By educating the public about the threat of the punishment

The effectiveness of the theory depends on the efficacy of legal system – how the system works, how accurate is the investigation and reports. If there is delay in awarding punishment, the offender may not feel threatened to commit the same crime again, and the public will lose confidence in the system existing.

The ultimate goal of the  theory of is to disable the criminal from committing further crimes. The disablement may be either permanent or temporary. Imprisonment is a form of disablement, where it is life imprisonment, and the disablement is permanent, and it is only for a specific amount of time, i.e. for   seven years, then the disablement is temporary.

Reformative theory: 

Mahatma Gandhi quoted “ An eye for an eye blinds the whole world” which later became the foundation for the reformative theory. It stated that punishment is not just to punish but transform the person. 

According to the theory the aim of punishment is to transform culprit. It also states that crime is connected to physical or emotional condition of criminal and the society’s environmental circumstances. 

Objective of reformative theory: 

The goal of the punishment system of a country is to transform the criminal rather than simply punish him. They have to make sure that he can again become an ordinary law-abiding citizen of society.

Laws dealing with reformative theory:  

Article 72 and article 161 of the constitution States that the president and the governor have the power to pardon the wrongdoer. 

President can you exercise these powers only the following cases: 

1. A case against an  individual who violated a union law

2. A case where punishment was imposed by a court martial or military court 

3. When he contemplates a death penalty.

Criticism of reformative theory: 

1. It is believed that habitual criminals who have a natural tendency to commit crimes should be punished according to the prohibitive theory, rather than the reformative theory, in order to serve the national interest.
2. In cases where the punishment involves a death sentence, the reformative theory cannot be applied as it is only through life that an offender can be reformed. Therefore, the use of death sentences contradicts the reformative aspect of the penal system.
3. The reformative theory of punishment generally focuses on the offender and may at times be unfair to the victim. In the process of protecting the rights of prisoners, the courts may accidentally infringe upon the rights of victims.
4. In India, where poverty is a major contributor to crime, if prisoners are treated too leniently, it may encourage people to commit minor offenses and return to prison under the guise of reform.

Cases: 

1. In case of Sunil Batra v Delhi Administration the court observed that if the wrongdoer is violent or dangerous then only it is necessary to give solitary confinement which is necessary to prevent offenders from society. Thereby the court abided the retributive theory of punishment. 
2. In the case of Anwar Ahmad v/s. State of Uttar Pradesh and Anr. the convicted had already undergone a six months imprisonment before being officially convicted by the Court. The Court held that since the convict had been convicted the requirement of  ‘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 loss upon his family. 
3. In the case of Sri Ashim Dutta Alias Nilu versus the State of West Bengal, it was observed that both deterrent and retributive punishment aim to prevent the recurrence of offenses by setting an example with exemplary punishment for a particular offense. However, civilization and societies are progressing rapidly with advancements in science and technology. As a result, literate people and experts in different branches of knowledge have started to think differently. The principle of “an eye for an eye, and a tooth for a tooth” is no longer considered the correct approach towards criminals. Such a principle may perpetuate the rule of the jungle but cannot ensure the rule of law.
4. In the case of Dr. Jacob George v State of Kerala, the Supreme Court established that punishment should serve multiple purposes, including deterrence, reform, prevention, retribution, and compensation. It is not advisable to favor one theory of punishment over another. Instead, each theory should be applied based on the individual merits of the case. The Court also noted that everyone has a past, and even those who have committed crimes can be reformed and become productive members of society. Therefore, it is the responsibility of society and the law to work towards rehabilitating criminals and preventing future crimes. This is the primary goal of both society and the law, and it cannot be ignored.
5. In the case of Surjit Singh v State of Punjab one of the accused, a policeman entered the house of the deceased to commit rape but failed to do so but the sons of the deceased shouted for help. Another accused suggested the policeman kill the deceased. The accused was held liable under the section 450 of the Indian Penal Code. On the contrary, the death penalty or capital punishment is more of temporary form of disablement.