How can the theories of punishment be critically analyzed?

Introduction 

Punishment is a significant aspect of criminal law. Every civilization had its own method of social control, which involved enacting certain laws and mentioning the deterrents associated with them. Punishment is the consequence imposed on a wrongdoer for their actions. Simply put, the primary goal of punishment is to provide relief to the offended individual while also maintaining law and order in society. Punishment can be defined as the imposition of some form of deprivation, often involving the denial of an individual’s rights. Theories of punishment seek to prevent crime by deterring both the perpetrator and others from committing similar acts. Punishment was historically intended to cause harm and was also used as a tool to deter crime and keep society peaceful. Theories of punishment are widely used to justify the state's criminal justice system. It is justified based on deterrence and to prevent crime which will contribute to a cleaner society. 

Theories of Punishment

Following are the theories of punishment:

1. Retributive Theory 

This theory is often referred to as the “Theory of Vengeance”. Retributive theory is one of the most fundamental and ancient concepts of punishment. It is based on the Doctrine of Lex Talionis, which translates to "Tooth for Tooth, Eye for Eye, Limb for Limb, and Nail for Nail".

According to Sir John Salmond, the goal of retributive punishment is to retaliate for the harm caused by a criminal to society. Thus, those who believe in retributivism believe that the person who has done wrong should experience pain commensurate with the harm he has caused to an individual or society as a whole.

The concept of retributive justice is based on three principles:

1. Those who commit serious crimes deserve proportionate punishment.
2. It is intrinsically morally good for a legitimate punisher to give them the punishment they deserve.
3. Punishing the innocent or imposing disproportionate punishments on wrongdoers is morally unacceptable.

The Nirbhaya Judgement[1] is an example where retributive justice principles were observed. The Supreme Court sentenced four of the six convicts involved in the atrocious Delhi gang rape case to death, much to the pleasure of society.

Objections to the retributive theory

As society progressed, this sort of punishment was prohibited because it is difficult to define the proportion of pain or revenge in this sort of punishment, which refers to what and how much pain should be returned. If everyone seeks revenge on each other based on their hatred and the hurt they have caused, the entire natural justice principle will collapse.

2. Preventive Theory

Preventive theory, supported by Utilitarian theorists such as Austin, Bentham, and Mill, aims to incapacitate offenders in order to prevent anticipated crimes of similar or varying character. The theory’s utilitarian aspect explains why these jurists supported it. To ensure the efficacy of preventive theory, the principle “Justice delayed is justice denied” must be followed. The factor of promptness is critical since any delay in an inquiry or investigation may render the function or punishment ineffective. The death penalty is likewise founded on this concept. This theory is another type of deterrent theory. One goal is to dissuade society, while the other is to keep the offender from committing the offense. After conducting a comprehensive analysis, we identified three key preventive punishment methods:

1. Creating dread of punishment
2. Disabling criminals from committing further crimes
3. Reforming and transforming them into responsible members of society.

In Dr. Jacob George v. State of Kerala[2] the Supreme Court highlighted that punishment should serve multiple purposes, including deterrence, reform, prevention, retribution, and compensation. Choosing one theory over another does not constitute a sound punishment strategy. Punishment theories can be utilized separately or in combination depending on the case's merits. It is said that "every saint has a past and every sinner has a fortune." Criminals are a part of society and must be reformed to become responsible citizens. Preventing crime is a crucial goal for society and the law that cannot be overlooked.

In the case of Sunil Batra v. Delhi Administration[3] , the court of law held that if a prisoner is violent or dangerous, solitary confinement is required to prevent and segregate these offenders from society, thus adhering to the retributive theory of punishment.

Objections to the preventive theory

While the retributive theory encourages the offender's dissertation, it has serious repercussions and challenges for the accused. It is important to highlight that the concept of morality is subjective by definition, making it impossible to impose sanctions for crimes committed. Therefore, the immorality of crimes must be comparable.

3. Deterrent Theory

This theory, developed by Jeremy Bentham, is based on the principle of hedonism, which states that a man would be deterred from committing a crime if the penalty was immediate, certain, and harsh. In the deterrent theory of punishment, the term "DETER" refers to refraining from committing any wrongful act. This idea aims to "deter" offenders from committing similar crimes in the future. So, it states that the goal is to deter crime by instilling terror; to set an example for individuals or society as a whole by punishing the guilty. That is, according to this theory, if someone commits a crime and is punished severely, the people of the society may become aware of the severe punishments for certain types of crimes, and as a result of this fear in the minds of the people of the society, the people may refrain from committing any kind of crime or wrongdoing. In this case, I used the word "may stop" rather than "will stop." This suggests there remains a possibility of individuals committing crimes despite the threat of punishment.

There should be a link between the offence done and the punishment received. When deciding on the punishment, the following factors should be considered:

• The severity of the crime: Punishment should be proportionate to the nature of the crime committed; for example, pickpocketing cannot result in a death sentence.
• Gravity of the offense: The repercussions of the penalty must be considered, as well as the victim's satisfaction with the outcome.
• Effect on the People at Large: The most crucial factor to examine is how that penalty will be seen by the general public.

In the State of H.P. v. Nirmala Devi[4], the court ruled that if the crime committed is terrible and serious against society, the deterrence principle becomes more significant, because those who are guilty will be punished in order to prevent future potential offenders.

Objections to the deterrent theory

The deterrent theory adheres to the idea "Ignorantia Juris Non Excusat," which translates to "ignorance of law is no excuse," because it is believed that people are accountable for knowing and obeying the law, regardless of whether they are aware of it. As a result, it does not address the underlying causes of criminal behavior or society's treatment of him, and it has been condemned by various jurists for being unsuccessful in reducing crime.

4. Reformative Theory

The reformative theory, also known as rehabilitative sentencing, is based on Mahatma Gandhi's principle of “Condemn the Sin, not the Sinner”, this theory suggests that the state’s penal system should focus on reforming the criminal through individualized treatment rather than merely imposing punishment. This theory is founded on the humanitarian concept that simply committing a crime does not cause the wrongdoer to lose his or her humanity. Supporters of this approach argue that treating an offender sympathetically, tactfully, and lovingly can help him become an orderly and law-abiding citizen.

Justice Krishna Iyer's observation in Mohd. Giasuddin v. State of Andhra Pradesh[5], “Every saint has a past, and every sinner has a future" captures this viewpoint. According to this view, crime is linked to the patient's current physical or emotional state, society's treatment of him, and the environment and circumstances surrounding him. Thus, it arises as a result of the conflict between the criminal's character and intent. Given this argument, the reformative theory views criminals as patients. As a result, the state must make measures to reform the criminal while he is incarcerated and ensure that he is capable of leading a respectable life after completing his sentence.

With regard to minors, it has been somewhat successful because of the parole, pardon, probation, sentence commutation, remand home, and other measures. According to this notion, criminals can be transformed, and efforts can be made to re-educate and reform them by teaching them a particular trade, art form, or industry, or by educating them so they can go on with their lives normally once they are released from prison. Because punishment is more restorative than deterrent, reformative theory opposes penalization and harsh punishments intended to bring an offender back because doing so will only degrade the offender.

Objections to the reformative theory

Opponents of the reformative theory contend that it takes an offender-centric approach and that, in many situations, concentrating solely on this type of punishment will be unjust to the victim, particularly in cases involving severe crimes like rape or murder. While reformative punishments have shown efficacy when used to juveniles and first-time offenders, they become ineffective and unworkable when applied to habitual criminals or when death sentences are involved. Furthermore, it needs a substantial investment, which those in poverty are unable to make.

5. Expiatory or Compensatory Theory 

One of the oldest theories of punishment still in use in Indian criminal law is the expiatory theory, which was highly regarded by the Manusmriti, an ancient Hindu legal commentary, as a method of punishment that emphasized the rehabilitation of offenders into members of society. The theory's applicability has become inadequate due to societal advancements, and relying only on it for experimentation would be too expensive in terms of societal safety and security.

The expiatory theory of punishment, which is based on moral and ethical grounds, holds that an offender's own repentance or expiration as a form of punishment. This theory emphasizes atonement, restitution, repentance, and compunction as a conscience-oriented means of purifying one's heart.

There are two primary reasons why victims of crimes can receive compensation:

• The offender who caused harm to an individual or group of individuals, or their property, must be compensated for the harm they caused, and
• The state, which neglected to ensure the safety of its citizens, must be compensated for the harm it caused.

"The Reformative and reparative theories deserve serious consideration, where the victim(s) of crime or his family members should get compensated from the wages that are earned in prison by the criminal," In State of Gujarat and Anr. v. Hon'ble High Court of Gujarat[6], Justice Thomas held had the Court recommended that the specific State enact comprehensive legislation regarding the compensation that is due to victims of criminal activity.

Objections to expiratory or compensatory theory

Expiratory sanctions can scarcely be considered efficient in bringing about any reformation in the criminal mentality of offenders in the current day of materialism and precedent, where every single being is only busy justifying their deeds in one way or another. As a result, the sanctions recommended by this theory may be sufficient to cope with minor and inconsequential offenses, but they are deemed unrealistic when it comes to the most serious ones.

Conclusion

Over time, jurists have developed various doctrines of punishment, each aiming to deter, discourage, and incapacitate offenders. This dread may be of bodily pain, financial loss, or public disgrace. The criminal justice system believes that the prospect of living a restricted lifestyle will not only modify an offender's attitude, but will also discourage others from doing the same. The theories of punishment developed by jurists throughout history are all significant, yet none of them are flawless and cannot function in isolation. In fact, all of those concepts prominent in criminal jurisprudence are related and rely on one another. Every theory has strengths and weaknesses, and as a result, it has been criticized and praised for various reasons. When examined closely, it is revealed that in order to maintain equilibrium or prevent criminality in society, all types of punishment theories must be present in a criminal system and operate together.

The primary goal of punishing an offender convicted of a crime is to restore social order.  In the process of determining punishment, both the offended party's and the accused's interests must be considered. One must remember that punishment should be commensurate to the magnitude of the offense committed by the perpetrator. Keeping this in mind, punishment must be administered in order to prevent crime from occurring at an alarming rate in society. When it comes to the theories presented in this article, they provide a jurisprudential value for the criminal justice system in determining punishments based on the crime committed. These theories have played an important role in assisting legislators and judges in framing and interpreting penalty measures for a better society.

[1] Mukesh & Anr v. State for NCT Of Delhi & Ors, AIR 2017 SCC 2161.

[2] 1994 (3) SCC 430.

[3] 1978 AIR 1675. 

[4] AIR 2017 SCC 1981.

[5] AIR 1977 SC 1926.

[6] AIR 1998 SC 3164.

Download