CRIMINOLOGY, PENOLOGY &

VICTIMOLOGY

PROJECT REPORT

ON

PENOLOGY AND CONTEMPORARY

ROLE OF PUNISHMENT

SESSION 2020-2021

UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY

CHANDIGARH
SUBMITTED TO: SUBMITTED BY:

DR. ANJU CHOUDHARY UMANG GARG

221/16

B.COM LL.B (HONS.)

5TH YEAR, SEC-D

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 ACKNOWLEDGEMENT

First of all, I am grateful to “THE ALMIGHTY GOD” for establishing me to

complete this project.

I wish to express my sincere thanks to ‘Dr. Rajinder Kaur’, Director of the UILS
Department for providing me with all the necessary facilities.

I place on record, my sincere gratitude to ‘Dr. Anju Choudhary’, Professor,

Department of UILS. I am extremely grateful and indebted to her for her expert,
sincere, and valuable guidance and encouragement extended to me. I take this
opportunity to record sincere thanks to all the faculty members of University
Institute Of Legal Studies for their help and encouragement. I also thank my
parents for their support.

I also place on record, my sense of gratitude to one and all who directly or
indirectly, have lent their helping hand in this venture.

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 CONTENTS

SERIAL NO. TOPIC PAGE NO.

01. INTRODUCTION 04.
02. PENOLOGY 05.
03. PUNITIVE 10.
APPROACH AND
CONTEMPORARY
ROLE OF
PUNISHMENT
04. THEORIES OF 12.
PUNISHMENT
05. CRITICAL 19.
ANALYSIS OF
PUNITIVE
APPROACH:
CONTEMPORARY
ROLE OF
PUNISHMENT
06. CONCLUSION 21.
07. SOURCES 23.

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 INTRODUCTION
In society we can see people of different sects and class. As not all the fingers are same, in the
society too, there are citizens who abide by the law and others who flung the laws for their evil
motive. It is the responsibility of the state to protect its interest. The person who does any act
which is forbidden by natural justice or statutory law commits a crime. When any crime is
committed it is not committed against the person but a state at large. What exactly constitutes
a crime is defined in the laws of every state. Some acts may be a crime for some state and not
for some other states. If the crime is committed it attracts punishment for commission of such
offence so that it should not get repeated. To have its effect on the society the punishment used
to be based on the objective it wanted to serve at large.

Evenly, crimes are consequence of several factors and reasons, as Aristotle says “man is social
animal”. The origin of the punishment is way back since the human inception. There are
countless myths and traditions which were followed by the civilized people which are studied
under Criminology. Criminology is one of the emerging subjects during the 19th and 20th
century. It contains an organized set of information and observations of law breakers, crimes
and the treatment of law breakers. It has many sub branches which makes this knowledge as
academic subject. One of the main branches is Penology which is a study of punishments. The
origin of the subject can be traced way back in 1834, by Francis Lieber, a German American
to denote a system of administrating punishment to the convicted offenders. Before this the
Italian Criminologist, Cesare Beccaria wrote “Essays on Crime and Punishments” which was
published in 1764.

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 PENOLOGY
Sociology has many branches including Criminology which studies the actions and thought
process of a criminal mind. Penology, also called Penal Science, is the division of criminology
that concerns itself with the philosophy and practice of society in its efforts to repress criminal
activities, and satisfy public opinion via an appropriate treatment regime for persons convicted
of criminal offences. Francis Lieber was the Sociologist who coined the term Penology which
means punishment for criminals.

The term ‘Penology’ has been derived from Latin word “poena” which means pain, suffering
or punishment and the Greek suffix “logia” which means study of. The Oxford English
Dictionary defines penology as “the study of the punishment of crime and prison
management,” and in this sense it is equivalent with corrections. As the term signifies,
Penology stands for the policy of inflicting punishment on the offender as a consequence of his
wrongdoing. It extended to cover other policie as well, not punitive in character, such as
probation, medical treatment, and education, etc., aimed at the cure or rehabilitation of the
offender.

The principal aims1 of penal science are:

 To bring to light the ethical bases of punishment, along with the motives and purposes
of society in inflicting it;
 To make a comparative study of penal laws and procedures through history and between
nations;
 Finally, to evaluate the social consequences of the policies in force at a given time.

Thus conceived, Penology represents a grouping of studies, some of which, dealing with the
aims and the moral or social justifications of punishment, date from a remote past, while others,
having to do with the wider social implications of the system.

Dr. P.K Sen, a well-known authority on Indian Penology, has observed that penology embodies
the fundamental principles upon which the State formulates its scheme of punishment. He
further pointed out that punishment always lacks exactness because it is concerned with human
conduct which is constantly varying according to the circumstances. He, therefore, suggested

1
https://www.britannica.com/topic/penology visited on 29.05.2021 at 10:02 am.

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that punishment must be devised on case to case basis so that it could be free from rigidity and
capable of modification with changing social conditions.

HISTORICAL EVOLUTION OF PENOLOGY

Historical theories were based on the notion that fearful consequences would discourage
potential offenders. An example of this principle can be found in the Draconian law of Ancient
Greece and the Bloody Code which persisted in Renaissance England, when (at various times)
capital punishment was prescribed for over 200 offenses. Similarly, certain Hudud offenses
under Sharia Hadith tradition may incur fearful penalties.

Penal Science is not altogether new to Indian criminal jurisprudence. The Indian epics and
other authoritative sources such as Manusmirti, Nyaya Mimansa and Kautilya’s Arthshastra
contain exhaustive references to crime and criminals, which clearly indicate that a well-defined
criminal policy was in vogue in ancient India. The most striking feature of the penal law of
ancient India was that it used religion and morality as the basis of determining what was
criminal and what was not. In that era people showed greater respect for religion, morality,
ethical values and law. The social solidarity of the community kept people conscious about
their duties towards their fellowmen. The occurrence of crime was, therefore, a rare
phenomenon. Moreover, the fear of caste expulsion and social disapprobation acted as an
effective deterrent to keep persons away from criminality.

However, socio-political changes due to advent of the Moghul and the English, the Indian
society witnessed a radical change. Due to the impact of western culture the past traditions and
ethical values of life have all lost their significance and there has been a drift into excessive
materialism which has created an atmosphere conducive to multiplicity of crimes.

India’s criminal policy, penal laws and procedural laws are all modelled on British criminal
justice system. Modern concept of Penology dates from the publication Cesare Beccaria’s
pamphlet “On Crimes and Punishments” in 1764. They focus on the concept of
proportionality. In this respect, they differ from many previous systems of punishment, for
example, England's Bloody Code, under which the penalty of theft had been the same
regardless of the value stolen, giving rise to the English expression "It is as well to be hanged
for a sheep or a lamb". Subsequent development of the ideas of Beccaria made non-lethal
punishment more acceptable. Consequently, convicted prisoners had to be re-integrated into

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society when their punishment was complete.2 This represented a school of doctrine, born of
the new humanitarian impulse of the 18th century, with which Jean-Jacques Rosseau, Voltaire
and Montesquieu in France and Jeremy Bentham in England were associated. This, which came
afterwards to be known as the classical school, assumed every criminal act to be a deliberate
choice determined by a calculation of the prospective pleasures and pains of the act
contemplated. All that was needed to overcome the criminal purpose was to provide for each
and every crime a penalty adequate to overcome its assumed advantages.

The classical school was followed, a generation later, by the neo-classical school of the
revolutionary period in France, which modified Beccaria’s rigorous doctrine by insisting on
the recognition of varying degrees of moral, and therefore of legal responsibility, as in the case
of children and the insane, as well as of mitigating circumstances in general. The doctrine of
the “individualization of punishment”, i.e. of the punishment of the individual rather than of
the crime committed by him. This is the fundamental principle of the neo-classical school.

This normal historical development of penology was interrupted during the last quarter of the
19th century by the widespread acceptance of the theory of crime and its treatment promulgated
by Cesare Lombroso and his disciples. This, at first known as the Italian or Continental School
of Criminology, was later named the ‘Positive School’, so called because it pursued the positive
methods of modern science. Its fundamental doctrine was that the criminal was doomed by his
inherited traits to a criminal career and was therefore a wholly irresponsible actor. Society
must, of course, protect itself against him, but to punish him as a free moral agent was irrational
and it was unethical.

Although the enthusiasm for the doctrines of the positive school waned and the alleged facts
on which they were based were largely discredited, it nevertheless left a valuable legacy of
influence. Thereafter, a tendency to make the mental study of the criminal an essential part of
his diagnosis developed and that gave the Psychologist and, particularly, the Psychiatrist a
leading place in the development of modern penological theory. From studies such as these,
Criminologists discovered that there was no single formula that accounted for all violators of
the penal code.

2
Marcello Maestro, "A pioneer for the abolition of capital punishment: Cesare Beccaria." Journal of the History
of Ideas 34.3 (1973): 463-468

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NATURE OF PENOLOGY
Penology being a dynamic concept, its nature and scope change with the development in the
society, resulting into change in crime pattern. The nature of penology can be well understood
through following points:

 Crime and social policy are inter-related and the concept of crime and punishment
depends largely on the social values, accepted norms and behavioural patterns of a
particular society at a given time.
 Crimes are a varying content changing with the changes in social structure. What is
crime today may become a permissible conduct tomorrow and vice-versa. For eg.,
abortion which was considered to be a heinous crime because of the immorality
involved in it, is no longer an offence under certain circumstances, consequent to the
enactment of law legalising abortion.
 Crime is a relative term, therefore, what is wrongful (crime) at one place may not be
necessarily so in another place. For eg., adultery, earlier, was a criminal offence in India
but in England it is merely a civil wrong redressible by payment of compensation.
Consuming liquor is an offence in many States under their respective prohibition laws
but it is not so in wet areas where there is no licensing on sale of liquor.
 Morality of the society can be easily gauged from the law of crimes enforced in that
society at a given time. Criminal law is an Index of social progress of a given society.
 Penology is evolving with the emergence of law of crime and criminological knowledge
is undergoing through a definite process of evolution, corresponding to different phases
of social evolution.
 Development in society will certainly contribute to the rising incidence of crime. But
there is nothing to be perturbed about this rising trend in criminality. It is a myth to
think of a crimeless society. Modern criminologists have even gone to the extent of
reckoning increase in crime as a symptom of social progress. Therefore, penology has
to evolve with development in the society.
 In the modern era, the emphasis has shifted from ‘crime’ to ‘criminal’. The modern
view regarding penal policy favours individualisation of the offender through clinical
treatment methods. This has led to the emergence of reformatory era in the field of
penology, thus, rendering the earlier deterrent, retributive and retaliatory methods
outdated.

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 The nature and scope of penology is further extended by the philosophy that victims of
crime should not be forgotten in the overall scheme of penology. There is a need to
recognise the plight of victims of crime by both, the criminal justice system giving them
the respect they deserve and by the society providing the social support which they may
need. This will infuse confidence among them and they will cooperate with the police
and other investigation authorities. Ultimately, this will help reduce the incidence of
crime in the society.

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PUNITIVE APPROACH AND CONTEMPORARY
ROLE OF PUNISHMENT

Bringing the offenders to justice is a primary function of all Civil States. The practice of
punishment and public opinion concerning it has been profoundly modified due to the rapidly
changing social values and sentiments of the people. The important issue is whether a criminal
is to be regarded by society as a nuisance to be abated or an enemy to be crushed or a patient
to be treated or a refractory child to be disciplined? Criminal Justice System is to protect the
society against criminals by punishing them under the existing penal law and punishment can
be used as a method of reducing the incidence of criminal behaviour.

In Criminal Law, Punishment is any pain, penalty, suffering or confinement inflicted upon a
person by the authority of the law and the judgment and sentence of a court, for some crime or
offence committed by hum, or for him omission of a duty enjoined by law. According to
dictionary, Punishment involves the infliction of pain or forfeiture, it is infliction of penalty;
chastisement or castigation by the judicial arm of the state. If the sole purpose behind
punishment is to cause physical pain to the wrongdoer, it serves little purpose. However, if
punishment is such as leads him to realize the gravity of the offence committed by him, and to
repent at once for it, it may be said to have achieved its desired effect.

Each society has its own way of social control for which it frames certain laws and also
prescribes the sanctions with them. These sanctions are nothing but the punishments. The
features of punishment include:

 It involves deprivation of certain normally recognized rights considered unpleasant;

 It is consequence of an offence;
 It is applied against the offender of the law; and
 It is applied by an organ of the system that made the act an offence.

The society defines the offences and prescribes punishments for them. The kinds of punishment
given are surely influenced by the kind of society one lives in. during ancient period,
punishment was more severe as fear was taken as the prime instrument in preventing crime.
With change in time and development of human mind, the punishment theories have become
more tolerant. The present scenario also witnesses the opposition of capital punishment as
inhumane, though it was a major form of punishing the criminals earlier. The law says that it

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does not really punish the individual but punishes the guilty mind. Punishments can be used as
a method of reducing the incidence of criminal behaviour either by deterring the potential
offenders or by incapacitating and preventing them from repeating the offence or by reforming
them into law-abiding citizens.

Sir Walter Moberly suggests that punishment presumes:3

 What is inflicted is an ill that is something unpleasant.

 It is a sequel to some act which is disapproved by authority.
 There is some correspondence between the punishment and the act which has evoked
it.
 Punishment is inflicted that is imposed by someone’s voluntary act.
 It is inflicted upon the criminal, or upon someone who is supposed to be answerable for
him and for his wrongdoings.

According to Grunhut, three components must be present if punishment is to act as a

reasonable means of checking crime:

 Speedy and inescapable detection and prosecution must convince the offender that
crime does not pay.
 After punishment, the offender must have a fair chance to fresh start.
 The state, which claims the right of punishment, must uphold superior values, which
the offender can reasonably be expected to acknowledge.

3
http://kamarajcollege.ac.in/Department/Criminology/II%20Year/003%20Core%205%20-
%20Penology%20&%20Correctional%20Administration%20-%20III%20Sem.pdf

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 THEORIES OF PUNISHMENT
With the change in the social structure the society has witnessed various punishment theories
and the radical changes that they have undergone from the traditional to the modern level.
Kenny wrote, “It cannot be said that the theories of criminal punishment current amongst our
judges and legislators have assumed….either a coherent or even a stable form.” B.
Malinowski believes all the legally effective institutions…..are…..means of cutting short an
illegal or intolerable state of affairs, of restoring the equilibrium in the social life and of giving
the vent to the feelings oppression and injustice felt by the individuals. Modern penologists
prefer to classify theories of punishment under the following 5 categories:

Deterrent Theory

Retributive Theory

Preventive Theory

Reformative Theory

Expiatory Theory

 DETERRENT THEORY: Deterrent or deterrence means something that deters

somebody or something, restrain anyone from taking action, to discourage somebody
from taking action or prevent something happening especially by making people feel
afraid or anxious. One of the punitive methods of punishments believes in the fact that
if severe punishments were inflicted on the offender, it would deter him from repeating
that crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a
feeling of enjoyment in the act. To neutralize this inclination of the mind, punishment
inflicts equal quantum of suffering on the offender so that it is no longer attractive for
him to carry out such committal of crimes. To have the deterrent effect the punishments
used to be of a very rigorous nature. Hands were chopped of theft or robbers, sexual

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 offender’s organs were cut-off etc. If the punishment is severe then only it would serve
the deterrent effect.
Jeremy Bentham was the founder of this theory which was based on the concept that
man as such would be deterred from crime if punishment were applied swiftly,
certainly and severely. But being aware that punishment is an evil, he says, if the evil
of punishment exceeds the evil of the offence, the punishment will be unprofitable; he
will have purchased exemption from one evil at the expense of another.
But also in Bentham’s theory was the idea that punishment would also provide an
opportunity for reform. While a person goes on seeking pleasure, he also takes steps to
avoid pain. This is a new system of political philosophy and ethics developed by
Bentham and John Stuart Mill in the 19th century called Utilitarianism. It postulates
human efforts towards “maximization of pleasure and maximum minimization of pain
as the goal”. The main ethical imperative of utilitarianism is: “the greatest good for the
largest number of people; or the greatest number of goods for the greatest number of
people.” The fear of consequent punishment at the hands of law should act as a check
from committing crimes by people. Deterrent theory believes in giving exemplary
punishment through adequate penalty.
This theory can be best expressed in the word of Burnett, J. who said to a prisoner:
“Thou art to be hanged not for having stolen a horse, but in order that other horses
may not be stolen”.
However, in spite of all these efforts, there are some lacunae in this theory that it is
unable to deter the activity of hardcore criminals as the pain inflicted or even the
penalties are ineffective. The most mockery of this theory can be seen when the
criminals return to the prisons soon after their release. These criminals are not effected
at all by the jail restrictions rather they tend to enjoy these restrictions more than they
enjoy their freedom.
We have a very recent example of why deterrent theory is not successful in the case of
“Nirbhaya Rape Case, 2012”4. This case is the foremost case to be mentioned while
talking about deterrent theory of punishment. In this judgement, the Supreme Court
sentenced four out of six offenders involved in the extremely heinous Delhi gang rape
case to death. Now, the most important questions are-
 Whether the death sentence to the culprits will act as a deterrent?

4
Mukesh and Anrs. V. NCT Delhi (Nirbhaya Case) (2017) 6 SCC 1

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  Will the number of crimes against women in our society drop down
permanently?
 Specifically, in Nirbhaya judgement, is the aim of deterrent theory
fulfilled?
The answers are ‘no’. According to deterrent theory, the main objective is ‘to deter
crime, by creating a fear or establishing an example to the society.’ Now, death penalty
is a severe punishment. In the Nirbhaya case, the Court gave death sentence to the four
convicts for committing gang rape. We can say that it is a great example for future
offenders who will think about committing a crime like rape in future. So, according to
this theory, after Nirbhaya judgment crimes like rape should not happen. But they are
happening till now. Day-by-day, rape cases are increasing in our society.
In Nirbhaya gang rape judgement, it’s been said that justice has finally been served to
“India’s Daughter” and though the decision came after a staggering seven years, it will
help to secure the safety of women and prevent rape cases in the future. But it seems to
further, as starting of the year 2020 has seen a slew of rape cases continue unabated. As
an example, we can see for a recent gang rape case which was happened at Hathras,
Balrampur, on 1st October 2020. So, simply we can see that there is no improvement
through severe punishments also. “Death penalty does not act as a deter to rape cases”.
In Phul Singh v. State of Haryana5, 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.”
 RETRIBUTIVE THEORY: Also called “Theory of Vengeance”, it is based on a very
small doctrine, namely the doctrine of Lex Talionis, which means ‘an eye for an eye’.
“An eye for an eye would turn the whole world blind”- said Mahatma Gandhi. The most
stringent and harsh of all theories, retributive theory believes to end the crime in itself.
It underlines the idea of vengeance and revenge rather than that of social welfare and
security. Punishment of the offender provides some kind of solace to the victim or to
the family members of the victim of the crime, who has suffered out of the action of the
offender and prevents reprisals from them to the offender or his family. The only reason
for keeping the offender in prison under unpleasant circumstances would be the
vengeful pleasure of sufferer and his family.

5
Phul Singh v. State of Haryana, 1980 Cri. L.J. 8.

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 This theory is based on the same principle as the deterrent theory, the Utilitarian
Theory. To look into more precisely, both these theories involve the exercise of control
over the emotional instinctual forces that condition such actions. This includes our
sense of hatred towards the criminals and a reliance on him as a butt of aggressive
outbursts. Sir Walter Moberly states that the punishment is deemed to give the men
their dues. He said, “Punishment serves to express and to satisfy the righteous
indignation which a healthy community treats as transgression. As such it is an end in
itself.”
Nirbhaya Case 20126 is indeed the first and foremost case to be mentioned, while
talking about retributive justice in India. In this Judgement, the Supreme Court
sentenced four out of six felons involved in the extremely heinous Delhi gang rape case
to death, much to the delight of the society, as they had committed an extremely
gruesome, as well as morally unimaginable crime.
Retributive punishments are somewhat vengeful in their nature (an eye for an eye).
They may not be vengeful always, but maybe merely morally vengeful. When we say
this, it means that although the punishment is not literally the thing that was originally
done by the perpetrator, is still acts as a vengeance by virtue of its seriousness. E.g: If
a person rapes someone, capital punishment maybe given as a retributive measure. If
we literally give the person back what he did, i.e., sex, then it would be pleasurable
rather than torturing for him.
It has also been observed7 that both deterrent and retributive punishment aim at
prevention of the recurrences of the offences by others passing exemplary punishment
for a particular offence. But the civilization and the societies are progressing rapidly.
There is advancement of science and technology. The literate people and the experts in
different branches of knowledge started thinking in a different way. Eye for an eye, and
tooth for a tooth are no more considered as the correct approach towards the criminals.
Such principle may perpetuate the rule of the Jungle but cannot ensure the rule of law.
 PREVENTIVE THEORY: this theory is based on the proposition- ‘not to avenge
crime but to prevent it’. Looking at punishments from a more humane perspective, it
rests on the fact that the need of a punishment for a crime arises out of mere social
needs, i.e. while sending the criminals to the prisons the society is in turn trying to

6
Mukesh and Anrs. V. NCT Delhi (Nirbhaya Case) (2017) 6 SCC 1
7
Sri Ashim Dutta alias Nilu v. State of West Bengal, (1998) 2 CALLT 338 HC

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 prevent the offender from doing any other crime and thus protecting the society from
anti-social elements.
Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive
theory of punishment due to its humanizing nature. Bentham asserted that it is the
certainty of law and not its severity which has a real effect on offenders. Fichte
observed, “the end of all penal laws is that they are not to be applied.” Giving an
illustration he continued, “when a land owner puts up a notice ‘trespassers will be
prosecuted’, he does not want an actual trespasser and to have the trouble and expense
of setting the law in motion against him. He holds that the threat will render any such
action unnecessary, his aim is not to punish trespasser but to prevent it. If trespass still
takes place, he undertakes prosecution. Thus, the instrument or deterrence which he
devised originally consisted in the general threat and not in particular convictions.” The
theory seeks to prevent the recurrence of crime by incapacitating the offenders. It
suggests that prisonisation is the best mode of crime prevention as it seeks to eliminate
offenders from the society thus disabling them from repeating crime.
In the case of Dr. Jacob George v. State of Kerala8, the Supreme Court held that the
aim of punishment should be deterrent, reformative, preventive, retributive &
compensatory. One theory preferred over the other is not a sound policy of punishment.
Each theory of punishment should be used independently or incorporated on the basis
of merit of the case. It is also stated that “every saint has a past & every sinner has a
fortune”. Criminals are very much a part of the society so it is a responsibility of the
society also to reform & correct them and make them sober citizens of the society.
Because the prevention of crime is the major goal of the society and law, both of which
cannot be ignored.
 REFORMATIVE THEORY: the most recent and the most humane of all theories are
based on the principle of reforming the offenders through individual treatment. Not
looking to criminals as inhuman, this theory puts forward the changing nature of the
modern society where it presently looks into the fact that all other theories have failed
to put forward any such stable theory, which would prevent the occurrence of further
crimes. Though it may be true that there has been a greater onset of crimes today than
it was earlier, but it may also be argued that many of the criminals are also getting

8
Dr. Jacob George v. State of Kerala, 1994 SCC (3) 430.

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 reformed and leading a law-abiding life all-together. Reformative techniques are much
close to the deterrent techniques.
Reformative theory condemns all kinds of corporal punishments. The major emphasis
of the reformist movement is rehabilitation of inmates is correctional institutions so that
they are transformed into good citizens. The reformative approach to punishment seeks
to bring about a change in the attitude of offender so as to rehabilitate him as a law-
abiding member of society. Thus, punishment is used as a measure to reclaim the
offender and not to torture or harass him. It aims at transforming the law-offenders in
such a way that the inmates of the peno-correctional institutions can lead a life like a
normal citizen. These prisons or correctional homes, as they are termed, humanly treat
the inmates and release them as soon as they feel that they are fit to mix up with the
other members of the community. The reformation generally takes place either through
probation, parole, furlough, premature release on open jails as measures for reforming
criminals. It looks at the seclusion of the criminals from the society as an attempt to
reform them and to prevent the person from social ostracism.
Though this theory works stupendously for the correction of juveniles and first time
criminals, in the case of hardened criminals this theory may not work with that
effectiveness. Sex Psychopaths also seem to respond favourably to this individualized
treatment model of punishment. Hardened criminals, however, do not respond
favourably to the reformist ideology. It, therefore, follows that punishment should not
be regarded as an end in itself but only as a means, the end being the social security and
rehabilitation of the offender in the society. Many penologists have denounced
‘rehabilitative ideal’ or the ‘reformist ideology’ underlying individualized treatment
model because in practice they are more punitive, unjust and inhumane than retribution
or deterrence.
 EXPIATION THEORY: Jurists who support this theory believes that if the offender
expiates or repents, he must be forgiven. They believe that punishment should fit the
criminal. Juveniles, women, old and infirm persons may not have the same motive
behind commission of crime as the adults or hardened criminals may have. They need
to be treated differently. In India, the juveniles, the first time offenders and offenders
of petty offences are given some concessions befitting to this theory. The juveniles or
first time offenders may be released on probation or in care of some fit institutions for
counselling. The idea behind this theory is to give an opportunity to the offenders to
repent, understanding their bad criminal behaviour, and reform from within. The release

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 of offender after admonition, release on probation, sentence of community service, the
provisions relating to compensation to victims of crimes out of wages earned by the
offender by working in prisons and imposing of heavy fines on the offenders are some
of the tools of expiation theory. Both the criminals as well as the victims of the crime
are in focus of this theory. The Penologists who believe in this theory are of the view
that an offender of law should be reclaimed back to the society as a good person by
giving him the opportunity to reform from within at his own initiative. The theory can
be applied in petty cases successfully. The concepts of compounding of offence under
section 320 Cr.P.C. and Plea Bargaining under section 265A to 265Z Cr.P.C. are near
to the principles of expiation theory. The theory appears to be a necessity and relevant
in context of Indian Criminal Justice System where rate of conviction is very low and
majority of the offenders go unpunished. The noted Criminologists Garofalo, though,
has rejected the theory of expiation on the plea that a criminal by nature lacks self-
consciousness and, therefore, expiation as a punishment has only theoretical base.

It must be noted that punishment prescribed under the IPC and under the Local & Special Laws
is a combination or compromise between the underlying principles of all these theories.

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 CRITICAL ANALYSIS OF PUNITIVE APPROACH:
CONTEMPORARY ROLE OF PUNISHMENT

Some criminologists believed that criminals alone to be accountable for their acts and
emphasize retribution. Maintaining that the key to the crime problem is a retributive theory, so
called “conservatives”, such as Jaques Barzun, Earnest van den Haag, and C.S. Lewis have
argued that the criminal has recently been given more rights than the victim. In order to achieve
a completely just and consistent policy and an increased respect for human life, proponents of
this theory have called for increased penalties for all serious crimes. They insist that the essence
of an adequate policy for dealing with crime necessarily involves the recognition of the
offender’s guilt, and his consequent, severe and well-deserved punishment. Other retributivists,
such as Martinson and Wilson, maintain that since rehabilitation does not lower recidivism
rates, there is no reason to forego traditional modes of incapacitation or punishment in favour
of therapeutic approaches.

The retributivist policy, has a logical and ethical framework to recommend it. On this view,
human beings are, and should be held to be, free responsible, and punishable. Proponents of
this theory maintain that it is far more desirable in terms of justice, to have one’s penalty related
retributively to one’s crime, than to have the criminal diagnosed as sick.

Karl Menninger and Ramsey Clark,9 have maintained what has been called a humanitarian
theory to support a quite different philosophy on this public policy issue. Arguing that it is
primitive and barbarian to speak of punishing criminals, proponents of this view cite the well-
in own facts that, statistically speaking, roughly 60% of all crimes are committed by socially,
economically and educationally disenfranchised members of minority groups. As Caryl
Chessman put it, most criminals are from the ranks of the friendless and fundless. They are
society’s victims before they victimize society. Hence according to proponents of the
humanitarian theory, they are to be helped, not hurt. They deserve rehabilitation and therapy,
not retribution.

Proponents of the humanitarian theory maintain that society must be held morally accountable
for crime, and not the offenders who are the members of the permanent underclass created by

9
Menninger, “The Responsibility of Criminals” In Burr and Goldinger, op. cit. pp 71-76; Ramsey Clark, Crime in
America (New York, Simon and Schuster, 1970); see also Menninger, The Crime of Punishment (New York,
Viking, 1968)

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society. In viewing the criminal as victim, and hence as not having freely chosen his actions,
proponents of this theory make a logical transition to the fact that he is also not ‘responsible
and not punishable’.

Experts since 1975 have held a “nothing works” doctrine. Arguing that since neither
rehabilitation not retribution lower recidivism rates, proponents of this third view have pushed
for a correctional philosophy of incapacitation. Incapacitation without therapy, however, come
down to a variant of punishment. Hence the more recent “nothing works” doctrine results
pragmatically in a punitive approach, this means that one is left basically with a choice between
some form of retributive correctional philosophy and some form of rehabilitative theory.

Some corrections experts maintain that since the early 1970’s, belief in rehabilitation has
disintegrated and we are turning back towards a more retributive approach. Other authorities
argue that we now are moving away from punitive practices and progressing towards more use
of rehabilitation.

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 CONCLUSION
No theory in itself is sufficient to curb crime and it has been observed that mostly the
combination is used to curb down the problem of rising crime and to have a deterrent effect on
the society that will prevent the commission of crime. Whatever theory be used, the ultimate
aim of punishment is to prevent repetition of crime by the offender himself as well as by other
members of the society.

In Narinder Singh & Ors. V. State of Punjab & Anr.10, there was a brief narration of the
jurisprudential theories of Punishment: 

 Firstly, there are certain acts which are prohibited by the law. Such prohibited acts are
offences. Whoever commits an offence has to face the consequences of his wrong
doing. Such consequences are in penal form. It may be an imprisonment, monetarily or
both and for serious offences capital punishment. In fact even imprisonment has its
gravity. It may be simple one or rigorous.
 Secondly, the question arose as to why the persons who commit crime have to be
subjected to the penal consequences. Many philosophies/jurisprudence justify the penal
consequences as having retributive, rehabilitative, deterrence or restoration effects. Any
or combination of this is the ultimate goal of sentencing.
 Thirdly, sentence guidelines are provided to guide the judges in awarding sentences in
various countries. Such guidelines are provided statutorily or otherwise. Whereas till
date in India we do not have such policy.
 The aim of such policies might not only aim at achieving consistencies in awarding
punishment but to prescribe sentence policy or purpose for awarding it, like whether
deterrence , retribution etc.
 In India the courts go by their own perception on awarding sentences. If the nature of a
judge is to give punishment in form of retribution he’ll grant that. If other judge is of
different outlook and believes in rehabilitation he’ll follow that. It depends on all the
philosophy of the judge.

10
Narinder Singh & Ors. V. State of Punjab & Anr., (1999) 7 SCC 409 [2].

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  In cases of crime against society and heinous crimes the deterrent theory of punishing
the offender becomes relevant.

In this the plight of the victim gets ignored who should be primary as the offence has been
committed against him and his family. Victimology will prove to be effective as far as giving
justice is concerned as till now the victims were not put into the light. The criminal justice
system of modern time is more facilitative and thus is kind a way moulding two or more
theories to meet the end of justice. With victimology we can say that now the justice system is
getting more justifiable and reachable thereby people can restore their confidence in the system.
With the focus on victims now the justice we can truly say is “served”.

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 SOURCES
The assignment has been prepared taking help from following sources:

BOOKS:

 Singh, Dr. Deepa, Dr. Malvika Singh and Dr. K.P. Singh, “Criminology, Penology &
Victimology”, 2nd ed. 2019, The Bright Law House, New Delhi.

WEBSITES:

 https://www.jstor.org/stable/23638585?seq=1
 https://www.britannica.com/topic/penology
 https://open.lib.umn.edu/criminallaw/chapter/1-5-the-purposes-of-punishment/
 https://www.ijeat.org/wp-content/uploads/papers/v8i6S3/F12250986S319.pdf
 https://www.sagepub.com/sites/default/files/upm-
binaries/5144_Banks_II_Proof_Chapter_5.pdf
 http://kamarajcollege.ac.in/Department/Criminology/II%20Year/003%20Core%205%
20-%20Penology%20&%20Correctional%20Administration%20-%20III%20Sem.pdf
 http://epgp.inflibnet.ac.in/epgpdata/uploads/epgp_content/S000016FS/P000689/M011
406/ET/1453177441FSC_P2_M35_e-text.pdf
 https://en.wikipedia.org/wiki/Penology
 https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/amp/

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