Punishment, according to the dictionary, involves the infliction of pain or penalty on the wrongdoer by the judicial arm of the State. Law is the string that binds society together, and therefore, the one who breaks this string is an offender, and liable to be punished. Since punishment is a mode of social protection, it generally deprives the offender of certain usually available rights. If the sole purpose of punishment were to inflict pain, it would serve little purpose. However, if the punishment makes the wrong-doer realise the gravity of his offence, it may be said to have brought the desired effect.
Punishments aim to reduce the incidents of crime either by deterring the potential offenders or preventing the repetition of the offence. There are different types of punishment that a person can face. Punishment may range from the death penalty to a small fine. In order to understand different kinds of punishment, it is crucial to understand the theories of punishment. This article discusses in detail the five theories of punishment, each based on a different objective of punishment.
1. THE DETERRENT THEORY OF PUNISHMENT
Punishment before anything else is a deterrent. The main aim of the law of crime is to make the offender an example, and the punishment inflicted on him as a warning for potential, like-minded wrongdoers.[1] It is assumed that those who commit a crime, get some mental satisfaction in such an act. Therefore, to neutralize this, an equal amount of pain is inflicted upon the criminal so that he no longer is attracted to the idea of committing any crime. In social life, punishment acts as a deterrence, enabling a person to think twice before committing any wrong.
There are two types of deterrence– Specific deterrence and General deterrence. Specific deterrence is when a criminal is put in prison, and this prevents him from committing a crime for that duration of crime. Moreover, this incapacitation is such an unpleasant experience that it prevents the criminal from repeating any offence. General deterrence is to prevent any other members of society from committing a crime in the future, considering the harsh punishment that the offender will have to go through.
According to J. Bentham, an unpunished crime leaves the path of crime open, not only for the delinquent but also for many others who might have the same opportunities and motives to commit the crime. An act of the past must be used to prevent future crimes by instilling the fear of punishment.[2] Therefore, the theory of deterrence provides exemplary punishment intending to prevent both the offender and the other people from repeating a crime.
2. THE PREVENTIVE THEORY OF PUNISHMENT
The preventive theory of punishment aims at disabling a criminal from committing a crime. It is based on the principle that a society must be protected from criminals. This may be done by sentencing the criminal to death, imprisoning him, suspending the driving license, as the case might be. Thus, the preventive theory aims to immediately disable the offender from committing a crime. The target of the incapacitation is the criminal himself, and the prevention comes from separating the criminal from the victim and potential victim, thus, denying any opportunities to commit a crime. However, unless the restraint is either permanent or there is in effect a complete rehabilitation program for the criminal, the imprisonment will not stop crime but rather only postpone it.[3]
3. THE REFORMATIVE THEORY OF PUNISHMENT
Reformative theory is based on the principle that the crucial point of crime is positive thinking. Reformation involves the renewal of the criminal and the beginning of a new life for him. According to this theory, the basic aim behind punishment must be reform by the criminal. This can be interpreted to be a rehabilitation process rather than a punishment. Thus, it helps in transforming a past wrongdoer into a law-abiding citizen by the provision of reformation facilities to him.
This theory has evolved in modern times as a result of giving a human touch to the law of crimes and thereby easing the harsh realities of punishment.[4] The concept arises as a result of increased understanding of sociological and psychological causes of crime. It has been discussed that a criminal is not borne but made by society. This gives rise to the need for the provision of reform methods to the criminal, by the society itself. An example of such a reform method would be using prisons as training centres instead of pure punishment.[5] Thus, the theory of reformation works on the principle of curing the criminal, not killing them.[6]
4. THE RETRIBUTIVE THEORY OF PUNISHMENT
The retributive theory considers that a person should be dealt with the manner in which he deals with others. It supports that the principle of ‘an eye for an eye and a tooth for a tooth’ is necessary for natural justice. The underlying implication of retribution is that the offender has to pay for his wrongdoing. This is based on the primitive vengeance theory, which involved the infliction of retaliatory harm by the victim to the criminal. Although private vengeance was given up because of its barbaric nature, yet the retributive theory still exists because the offender needs to be inflicted some amount of pain for his crime so that private vengeance can be prevented.[7]
According to this theory, the moral satisfaction that society obtains when a criminal is punished cannot be ignored. A criminal cannot be treated in an extremely forgiving manner because then the spirit of vengeance will not be fulfilled, and it may find its way through private vengeance.
However, this theory fails to understand and eliminate the root causes of crime. It also ignores the fact that if the motivation behind punishment is revenge, resistance will be a way of life in prison.
5. THE COMPENSATION THEORY OF PUNISHMENT
According to this theory, the objective behind punishment must not only be the prevention of future crime but also to compensate the victims of the crime. For a long period, the victims of crime complained about the incompetency of the criminal justice system. The entire focus of the system is on the criminal; how to punish him, or how to rehabilitate or reform him. This theory provides relief to the victims. It is based on the principle that a victim should be compensated for the ill gains made out of him.
There are two grounds of compensation for the victim. Firstly, the criminal who inflicted injury on the person or property is liable to compensate for the loss caused. Secondly, the State owes a duty to its citizens and if it is unable to protect its citizens, it should compensate the victims.[8] Therefore, compensation is treated as true deterrent and a necessary condition for retribution.
There are different theories of punishment in various jurisdictions according to the variations in cultures and civilizations. It is cruel to inflict too harsh a punishment on the criminals. However, it is also wrong to leave innocents suffering. Punishments have to be severe enough to act as a deterrent, but they should not be excessively harsh to be considered brutal. The nature of the criminal justice system prevailing in India can be explained through the Malimath committee’s observations.[9] It highlighted how the system of justice in India has become ineffective, with criminals being let off unpunished, cases being unresolved and citizens being in constant fear due to the ever-increasing crime rate in the country.
Section 53 of IPC mentions different punishments that range from the death penalty to a small amount of fine. It is important to note that the IPC does not mention the objective behind the punishments, which determines the theory of punishment. Although IPC mentions the maximum sentence for all crimes, but it leaves the imposition of a suitable punishment, depending on the gravity of the particular offence, on the judiciary. In Bachan Sing v. State of Punjab, the death penalty which forms part of the deterrence theory was affirmed by the Supreme court in rarest cases.
Moreover, the Supreme Court in Narotam Sing v. State of Punjab highlighted the importance of retributive theory and reformation theory of punishment. In Jacob George v. State of Kerala, it was held that the object of punishment should be deterrent, preventive, retributive, reformative and compensatory, which is very essential and should be followed since each theory of punishment has its own merits and demerits. A healthy criminal justice system would be one which relies not on one particular theory but a healthy mix of all the theories of punishment.
[1] Macklin Fleming, Of Crimes and Rights, (1978) 114.
[2] Jeremy Bentham, The Theory of Legislation, (1995), 209.
[3] Fleming, supra note 1, 175.
[4] Sutherland Edvin & Cressey Donald, Principles of Criminology, (12th ed., 1985) 317.
[5] Salmond, Jurisprudence, (12th ed., 2008) 95.
[6] Id.
[7] Crimes and Theories Of Punishment, available at https://shodhganga.inflibnet.ac.in/bitstream/10603/45012/9/09_chapter%204.pdf (Last viewed on June 24th, 2020).
[9] Ministry of Home Affairs, Government of India, Malimath Committee Report, Committee on Reform of Criminal Justice System, Vol. 1, (2003) 82.
This Article is Authored by Sakshi Sharma, 1st Year, B.A. L.L.B. (Hons.) The WB National University of Juridical Sciences.
Also Read – Theories of Punishment Under Indian Penal Code
