Theories of Punishment- A Profound Scrutiny By Hemant Chaudhry

Abstract

It is a fundamental duty of the state to protect its citizens from any of the crimes which are prevailing in the society. So to reduce the number of crimes in the country, the concept of punishments has been come into existence. Every offence or crime has the punishments in the various laws and Acts. The quantum of punishment used to be based on the theories of the punishment. The main objective behind the concept of Punishment and its theories is to protect the victim’s plight and to give him/her fair justice and compensation and also to diminish the crime in the society. This Article contains various Theories of Punishments and the embellishment of it in the modern time.

Keywords:  theories of punishment, retributive, deterrent, preventive, reformative and expiatory.  

Introduction

We have seen that, in a society, there are so many people from different parts of the country and are of different sects and classes. It is the responsibility of the state to protect its interest. The individual who does any act which is illegal by common equity or legal law carries out a wrongdoing. At the point when any wrongdoing is submitted it isn’t submitted against the individual yet a state on the loose. What precisely comprises a wrongdoing is characterized in the laws of each state. A few acts might be a wrongdoing for some state and not for some different states. On the off chance that the wrongdoing is submitted it pulls in punishment for commission of such offense so it ought not to get rehashed. To have its impact on the general public the punishment used to be founded on the target it needed to serve on the loose. The punishment is dispensed upon a guilty party who has submitted a wrong. It prevents not just the individual who has perpetrated a wrong yet in addition others from carrying out an equivalent wrongdoing. It must be for any legitimate wrong.

Punishment must include torment and its results must be horrendous. Punishments depended on the different sorts of theories of punishments which are deterrent, reformative, preventive, expiatory and retributive. Whichever might be the punishment the prime motivation behind offering equity to the general public was significant. The center was consistently to rebuff the crook. These theories are not fundamentally unrelated. In addition to the fact that they overlap to one another occasionally may coincide as a component of generally speaking framework in the general public. These different parts of approaches gave various shades to speculations.

Methodology

The research work done in this article is doctrinal in nature and is subjective research. The doctrinal research philosophy, which is situated in this article, incorporates different legitimate standards and ideas of numerous sorts, for example, lawful sculptures, articles and so forth the specialist has likewise contemplated different theories of punishment. In this manner the article incorporates subjective research of different national and global books, and diaries on a similar point.

The author might want to cause everyone’s to notice the predicament of the person in question and equity to the people in question.

1] The theories of punishment are ending up being inadequate to control down the crime percentage.

2] More consideration is given to the reconstruction of criminal which is less compelling.

3] The fundamental sufferer of the wrongdoing that is victim is overlooked in the process as spotlight stays on the lawbreaker.

4] Steps are required to be taken to make the victim secure.

Theories of Punishment  

According to Taylor, “A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or having one power on them.”[1] Each general public sets certain standards for itself and on the off chance that anyone goes astray from such determined standards; at that point he will be rebuffed by the general public. The disciplines which can be forced behind them a few hypotheses work which are known as retributive, deterrent, expiatory, preventive and reformative.

  • Retributive Theory of Punishment: This theory is one the ancient theories of punishment. This prevailed at the time when private vengeance used to take place. Like tit for tat, blood for blood or an eye for an eye. This theory is based on the rights and justice. The person who has committed the crime or offence must be penalized and deserves to be punished. The main motive behind the punishment is to restore the social balance disturbed by the offenders. The offender must be given the same pain and suffering as inflicted by him to the victim, this is the reason for which this is said why this theory is said as eye for eye and blood for blood.

In Hari Singh V. Shukhbir Singh & Ors.[2], the court has observed the failure of awarding compensation to the victims in terms of Section 357(1) of Cr.P.C and said “The 154th Law Commission Report on Cr.P.C devoted an entire to “Victimology” in which the growing emphasis on victim’s rights in criminal trials were discussed as, increasingly the attention of criminologists and penologists of criminal justice system has been directed to victimology. Principles of victimology have foundations in Indian constitutional jurisprudence. The provision on Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) form the bulwark for a new social order in which social and economic justice would blossom in the national life of the country (Article 38). Article 41 mandates inter alia that the State shall make effective provisions for “securing the right to public assistance in cases of disablement and in other cases of undeserved want.”

Reformative theory gives more weight to interest of criminals and deterrent theory priority would be social interest than criminal. Retributive theory is based on the doctrine of Poena sous tenere debet actors etnon alios which means punishment belongs to the guilty and not to the others. It punishes voluntarily acts and excludes involuntarily acts based on less blame worthy acts like the acts of insane persons or immature persons. Once criminal pays his debt to the society in the form of punishment, his sin will be admitted back to the mainstream of the society. This kind of philosophy is missing under deterrent theory.

  • Reformative theory of Punishment: In this theory the offender gets cured morally through the society as well as changing few physical habits of him/her. Here is a very interesting fact about this theory that “to commit a crime is decease and to cure it reformation serves as a medicine.”[3] In this theory, the offender is given a chance to make himself understand mentally so that he can make him strong enough and to stop himself from committing the crime again. This theory states that the object of punishment should be reformatory so that the offender should be reformed. The prisons should be converted into the reform homes. This approach rejects the deterrence and retributive elements of the punishments. The reformative theory is reaction to deterrent theory, which has failed to take into consideration of the welfare of the criminal or offender. The increasing understanding of the social and psychological cause of crime has led to growing emphasis on reformation rather than the deterrence.

In Sunil Batra II V. Delhi Administration[4], on prevailing conditions of Indian Jails, the court has observed that, “the rule 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. The Supreme Court in Narotam Singh V. State of Punjab[5] has rightly said that reformative approach to punishment should be the object of criminal law, in order to promote the rehabilitation without offending community conscience and to serve social justice. However, in M.H. Hoskot V. State of Mahrashtra[6], the Supreme Court cautioned the judiciary for showing more leniency to offenders based on reformative theory that would amount to injustice to the society.

  • Deterrent theory of Punishment: This theory of punishment was a very effective one and the main objective of punishment is to deter the offender from repeating the same course of conduct so that the persons and property of others may not be harmed and the main objective is to bring fear in the mind of the offender so that they don’t commit the crime fearing the consequences i.e. the punishment. To have the deterrent effect, the punishments used to be of very rigorous nature like hands were chopped of theft or robbers, sexual offenders organs were cutoff, etc. This thing will create a huge fear in the mind of the offender and he/she will think that he/she can be punished with the same rigorous punishment, so that he will try to stop himself from doing the offense. Imprisonment may provide temporary relief as long as criminal is inside the prison because motive of crime cannot be destructed by fear factor. The success of this theory can be measured by taking into consideration of data when there is breakdown of law and order.

In State of Karnataka V. Krishnappa[7] the court held that the measure of punishment does not depend upon the social status of the offender or of the victim. It must depend upon the conduct of the accused. Protection of society and deterring the criminal is the main objective of law and the same view was also observed in the case of State of M.P V. Ghanshyam Singh[8]. Also in the case of Phul Singh V. State of Haryana[9] the Supreme Court has observed, “The incriminating company of lifers and others for long may be counterproductive and in perspective, we blend deterrence with correction, and reduce the sentence to rigorous imprisonment for two years.”

  • Preventive theory of Punishment: Preventive theory of punishment makes it very clear that it is much realistic and gives it the human touch. The main objective of this theory is to prevent the society from the offences and another objective is to make the threat generally known rather than putting it occasionally into execution. On comparing this with the deterrent theory, if the deterrent punishment would not solve the sole purpose of punishment, the other mode is preventive punishment. By preventive, the criminal is prevented from commencing the crime, either by putting him into imprisonment, by inflicting death penalty and by ending the modes by which he commits the crime, as by putting in the imprisonment, the offender will be away from the society and he will be unable to commit the crime again. Thus, by preventing the criminal, he will be unable to commit the crime. In England, utilitarian as Bentham, Stuart Mill and Austin supported preventive theory because of its humanizing influence on the criminal law.
  • Expiatory Theory of Punishment: According to the present scenario, this theory is looking to be close as to the Retributive theory. The main concept behind this theory is that the offender will serve victims and their dependents to compensate the deprivation. The object of this theory is “to pay for the transgression submitted”. Nowadays this theory has gotten near Retributive. “On this view, wrongdoing is discarded, dropped, rubbed out or appeased by the sufferings of its delegated punishment. To endure discipline is an obligation because of the law that has been abused. Blame in addition to discipline is equivalent to innocence”. It is the idea driving this theory is that wrongdoer will serve the people in question and their wards to repay the hardship which will make the feeling of contrition and purging of heart. This theory holds that the discipline wipes away the transgression and the wrongdoer turns into the guiltless. Experimentation of this theory is excessively costly as far as open wellbeing and security. It couldn’t be an answer for the genuine offenses. It is adequate to meet the less genuine sort offenses. Anyway it is deplorable to state that the theory isn’t relevant to any arrangement of law.j It is held impracticable due to being hopeful. Despite the fact that, In Criminal Procedure Code, 1973 this theory is additionally being executed. Segment 320 of the said Act portrays certain wrongdoings which can be compoundable. The blamed can bargain with the casualty by paying cash or through conciliatory sentiment.
Conclusion

Now finally concluding to this Article, here we have seen that these theories were of great value and the main objective behind these is to give punishment to the offenders and to reduce the number of crimes in the society. No theory in itself adequate in the criminal equity framework to control down the crime percentage and number of lawbreakers. In this the situation of the casualty gets overlooked who ought to be essential as the offense has been submitted against him and his family. Victimology will end up being compelling most definitely as till now the casualties were not placed into the light. The criminal equity arrangement of current time is progressively facilitative and therefore is benevolent a way shaping at least two speculations to meet the finish of equity. With victimology we can say that now the equity framework is getting progressively reasonable and reachable in this way individuals can reestablish their trust in the framework. With the emphasis on casualties now the equity we can genuinely say is served.

 

References

  • Jermy Taylor, Works XIII, 306. Hebetr’s Ed., cited in Salmond on Jurisprudence
  • Hari Singh V. Sukhbir Singh and Ors (1988) 4 SCC 551
  • in
  • Sunil Batra II V. Delhi Administration [1980 3 S.C.C. 488]
  • Narotam Singh v. State of Punjab (1974)4 SCC 505p
  • H. Hoskot v. State of Maharashtra AIR 1973 SC 1548p
  • State of Karnataka v. KrishnappaL.J.1793 at 1799(SC)
  • State of M.P V. Ghanshyam Singh AIR 2003 SC 3191p
  • Phul Singh V. State of Haryana [1980. Cri. L. J. 8]

 

Footnotes

[1] Jermy Taylor, Works XIII, 306. Hebetr’s Ed., cited in Salmond on Jurisprudence

[2] Hari Singh V. Sukhbir Singh and Ors (1988) 4 SCC 551

[3] www.yourarticlelibrary.com

[4] Sunil Batra II V. Delhi Administration [1980 3 S.C.C. 488]

[5] Narotam Singh v. State of Punjab (1974)4 SCC 505p

[6] M.H. Hoskot v. State of Maharashtra AIR 1973 SC 1548p

[7] State of Karnataka v. Krishnappa 2000Cr.L.J.1793 at 1799(SC)

[8] State of M.P V. Ghanshyam Singh AIR 2003 SC 3191p

[9] Phul Singh V. State of Haryana  [1980. Cri. L. J. 8]

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