PUNISHMENT AND ITS THEORIES

Our society has been subjected to heinous crimes now and then. Therefore to lessen the number of crimes in society or set an example in society, several social control methods have been framed in-laws backed by sanction. These sanctions are nothing but the punishment that act to reinforce those social values that have to be maintained while interacting with others and protecting society from undesirable and notorious activities of either any individual or organization trying to disrupt society’s peaceful harmony.

Table of Contents

AIMS AND OBJECT OF PUNISHMENT

The object of punishment is to protect society from mischievous and undesirable elements by inducing a deterrent effect on the actual offender and exemplifying the same on the others to be reformed to its original and peaceful state.

The object of punishment has been summarized by Manu, the great Hindu law-giver in the following words:

” Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise consider the punishment (danda) as the perfection of justice.”[1]

FEATURES/CHARACTERISITCS OF PUNISHMENT

Punishment has the following features:

It is considered to be the consequence of an offense;
It is applied against the offender committing the crime to prevent him from indulging in such or any other offense;
It has to be moralizing, remissible, or reformative;
It should be equal for everyone proven guilty unless the context otherwise;
It should be of such a nature that it kills the crime inside the criminal and not the person committing the offense;
It is followed by a reduction of the targeted behavior, either in frequency or intensity.

PUNISHMENTS UNDER THE INDIAN PENAL CODE

Section 53 of the Indian Penal Code deals with the different punishments that a Court of competent jurisdiction can award as per the offense committed by the offender subjected to evidence’s availability. Therefore, the various punishments mentioned in this section are the following:-

Death penalty;
Imprisonment for life;
Imprisonment which is of either description: rigorous or simple;
Forfeiture of property;
Fine.

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THEORIES OF PUNISHMENT

The immediate consequence of a criminal act is followed by a sanction known as punishment. Thus, punishment can be defined as a state of being in pain, loss, or suffering inflicted by a penalty for the illegal deed done by that offender.

Different punishment theories are followed by the concerned authority to punish the criminal subjected to the crime committed. There are majorly four theories of punishment:-

DETERRENT THEORY

According to this theory, the main objective behind punishing a person is not only to prevent the wrongdoer from committing any crime further but also to make him an example before society to avoid others having criminal tendencies from committing a crime. Salmond considers that deterrent theory is the most effective process to control an offense. [2]

The chief aim of the law of crime is to make the wrong or evil-doer face the harshest punishment so that that person never dares to repeat that crime and exemplify on others as a warning to all that are like-minded.

The deterrent theory is further divided into two parts- Specific deterrence and general deterrence.

In specific deterrence, the punishment is designed in such a way that it can ultimately bring some reformation in the criminal, and this is done by creating a fear in the mind of the offender that every time he/she would indulge himself/herself in crime, he/she has to face the repetition of punishment.

While in general deterrence, the punishment is designed in such a manner that it could devoid the society from future crime.

But this theory has been subjected to criticism because it has not proved effective enough to keep a check on the crimes and also that excessive harshness of punishment leads to the defeat of the purpose of the sentence giving rise to the sympathy of the public towards the person suffering from such cruel and inhuman punishment. Therefore, instead of creating fear in the offenders’ minds, deterrent punishment hardens the criminals.

PREVENTIVE THEORY

According to Paton: “The preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose of disabling the offender.”[3]

This theory focuses on the prevention or disablement of a crime where the offenders are disabled from repeating the crime by punishing them with death, exile, or forfeiture of an office. Therefore, by confining or putting that criminal in jail, he is restricted from committing another offense.

The modern Criminologists came up with a different view where they suggested that the removal of social and economic forces are essential for preventive theory to succeed. Moreover, great attention has to be put on the individuals showing anti-national behavior to prevent them from committing crimes.

But this theory is also criticized as such that the offenders who are confined or are put in jail come in association with other criminals making them hardened.

RETRIBUTIVE THEORY

This theory is considered to be the most antique theory governing the concept of sanction or punishment. The principle followed by this theory is, “If you hurt me, I shall hurt you back,” ‘An eye for an eye,’ ‘a tooth for a tooth’ etc. Henceforth, it is seen that the punishment awarded to the wrongdoer is equivalent to the offense committed by him.

As this theory was a common practice in the primitive society to punish the offenders, the person wronged was allowed to take revenge against the evil-doer and make him suffer the same pain that the victim has to go through for evil acts accused.

We all know that though a crime is committed against an individual, its effect falls on society. Therefore, the retributive theory was in existence to gratify the instinct for revenge or retaliation, under which the subjects were not only the individuals but the whole society.

In modern times, the retributive theory of punishment is avoided to some extent. We can say that an alternative method of punishment has been brought forward to remedy the victim where the right to punish the offender has been vested upon the Court, the individuals.

But the critic of the retributive theory points out that punishment is not a remedy for the offender’s mischief.

REFORMATIVE THEORY

With a step towards modernity and development in criminal science, there has been a substantial alteration in the criminological researchers’ thinking and respective opinion, which led to the emergence of reformative theory. Therefore, today considering the theory of reformation, various legal researchers, along with focusing on the circumstances, also try to analyze the social or economic background and other factors that led to the commission of that offense.

According to the supporters of this theory, immediate action shouldn’t be the only ground to punish an offender; other factors such as his intention, nature of the crime, circumstances, etc., should also be taken under consideration, and punishment should be such that it brings a good change in the person rather than making him much harder. Further, the supporters also exclaim that being a criminal doesn’t cease to be a human being. Therefore, it becomes essential to look into the other factors that led the person to commit a crime against the other person. Hence, the objective of punishment should always be the reformation of the offender. Accordingly, he must be given primary education and made to learn various activities such as art and craft or to make industrial materials during his term of imprisonment so that he’s able to earn his livelihood and lead a good life after his release from jail.

Critics of this theory state that if criminals of heinous crimes are sent to jail for reforming into good citizens, then a prison will no longer be a prison but a mere dwelling house, which would ultimately destroy the very objective of punishments. Further, it has also been contended that the deterrent effect shouldn’t be entirely abandoned in favor of the wrongdoer’s reformation.

MULTIPLE APPROACH THEORY

We live in a diversified country where diversity is looked at as a natural aspect. This nature of diversity is applied everywhere, be it any caste, religion, profession, gender, or system of criminal justice.

Crime has been prevalent in our society from the very primitive era; the only change that has occurred is the grave increment in its intensity. Therefore, looking into its brutality, it can be concluded that a perfect criminal justice system could never be attained using any single theory of punishment. Every theory contains its own merits, and these good points have to be extracted from all and combined accordingly. It should be noted that the reformative theory, which is being followed highly in modern times, has to be given its proper place. It should be made sure that the confinement given to a person can develop thinking that every day and free life is better than jail life.

CONCLUSION

Punishment has its variations depending on factors such as intention, graveness, circumstances, nature, mens-rea, actus reus, motive, and various other determinants. Therefore, keeping in view, the determinants of criminal punishment should be awarded. It is because the motive of punishment is to kill the crime and not the criminal. We all know that the protection of society and security of a person’s life, liberty, and property is an essential function of the state, to attain which the state codifies punishments. Therefore, punishment creates fear in the wrongdoer’s minds so that he doesn’t repeat the same act and provides society with an example of what phase they have to go through if any criminal tendencies prevail in them.

The different theories of punishments that have been discussed above show the views of criminologists depending upon the change in the society, where there has been a transformation from deterrence to the reformative approach of a criminal. Hence, we can see that no person is devoid of confinement upon the commission of crime subjected to killing humanity in him.

REFERENCES

[1] Dr. Paras Dewan, Family law Ch. 7, para 18, p. 189 (Allahabad Law agency, 2019-2020).

[2] N.V. Paranjape, Jurisprudence, pp. 94-100 (Central Law agency,12th Edn.).

[3] K.D. Gaur, Indian Penal Code, Ch. III. pp. 35 (Published by LexisNexis, 6th Edn.).

BY ANANYA SAHA | INDIAN INSTITUTE OF LEGAL STUDIES