PRN 19010126269

Name: Gayathri Anil

Theories of punishment: An Exhaustive study and its application in the Indian Society

Abstract

In a society with the vast coalesce of humans of different personas, principles and ethics, the
need for a stringent set of rules in order to maintain harmony started being drafted in a sense
back in the ancient times. Furthermore, after framing rules and regulations, came the need to
enforce these rules amongst the people in a punitive force in order to ensure the practice of the
same. While the prime aspect of criminal law in a narrow sense is to weed out criminals and the
evil from the good people and protecting the latter, punishment also has transforming the
criminal into a valuable person of the society or even avenging them for the devastation of the
crime. The four main theories of punishments- deterrent, reformative, preventive and retributive
suggests the four main pillars that encompass the idea and essence of punishment in totality. This
paper elaborates on these theories, its significance and application in Criminal Justice and the
system of India.

Introduction

Crime has many faces. It is an extensive topic which is the umbrella for many types of violations
of law in the form of white collar crimes or corporate crimes, violent crimes, victimless crimes,
federal crimes, conspiracy, sex/drug rackets, etc. and many more. The consequences, however of
each and every one of these crimes remain different as the magnitude of destruction and damage
caused ranges from minor to major; and this is what decides the type of punishment, the term,
the extent of the sentence and whether a person can be rehabilitated and sent back to engage with
the society without again being a danger to the same. At all points however, the main cynosure to
the same remains the idea of justice; a fair and equal judgement for both the parties. As the
society advanced, avenging the crime committed stopped being the sole goal of the system as it
started believing in the idea of rehabilitation and reformation; treating crime as rather a sickness
which might have been resorted to due to unfortunate circumstances, poor upbringing, tortured
childhood etc. The law started recognizing them as humans who deserved an opportunity to
reform themselves and live respectfully in the society as a healthy and well-adjusted citizen.

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Critical analysis of the theories

Deterrent Theory

Deterrence is the term that states that punishment's main axis is to keep the offender from
committing the same offence again and to show other future offenders what would follow in
terms of punishment if they follow the criminal's path. The main concept behind punishment is
to maintain law and order in the state, city, nation or any geographical piece of land with
residents. Once the citizens are exposed to see what the penalty and punishment is to be borne by
the criminal for breach of law, every other citizen evaluates the risk factor related to committing
a crime; hence leading to fewer and fewer people willing to do the same. Dating back to the
nineteenth century, one theory suggested that the main goal of charting a punishment for a
particular crime is to be ensure that the pleasure, rewards or satisfaction derived from
committing the crime must be lesser than the pain and torture derived from the punishment for
the crime.1 This eliminates and further desires into committing any crime and thus discourages
immoral and illegal acts in hindsight Despite of having controversial laws, countries like the
Middle East use extreme punishments such as decapitation or public beheading, crucifixion,
public stoning, etc. in Saudi Arabia. The venue ‘Chop Chop square’ is known to be the venue for
public execution of all kinds. The country has now reported a low rate of crime- 24.72 as per
20222 while the highest rating countries stand at 80 and above. United Arab Emirates known as
well for its stringent and well executed laws stand at merely 15.14 as per 20223.

Hence a rather utilitarian principle, the deterrence theory is more focused on being preventive by
being more punitive while focusing on harsh forms of punishments in order to prevent any future
crime of the same kind.

1
Privette, Theories of Punishment, 29 U.K.C.L. Rnv. 76 (1958), Journal of Criminal Law and Criminology.
2
Crime index by country 2022.
3
Ibid.

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The ‘deterrent theory’ in the current system in India, is not relevant or effective and beneficial at
all as no current form of punishment has been successful enough to discourage and lessen the
crime rate. The power that money moguls and rich people have over the system, the need of the
government to want to provide as few extreme punishments as possible and the lack of ethical
and moral evolution amongst the politicians in the Indian system has caused a steep incline in the
crime rates due to the lack of accountability being placed on the criminals, especially in rape
cases.

The Nirbhaya rape case saw a huge protest and extreme fallacy in the law when it came to
granting a capital punishment for the known and convicted rapists of one of the most infamous
cases in India.4

The verdict for a capital punishment for the existing rapists of the crime was delivered a
staggering seven years after the case even after all the evidence that was needed to do the same
was provided long before. The goal of instilling fear, deterring crime and serving as a pivotal
example for why crime does not pay was not delivered at all by the court in India. The Indian
economy is rapidly expanding, while socioeconomic issues remain unresolved.

Retributive Theory

Persons should be treated in the same way as they treat others, as per the retributive theory. It
contends that natural justice necessitates the idea of it being founded on a doctrine known as Lex
talionis, translates as "an eye for an eye." The basic idea of punishment is that the wrongdoer
must bear the exact consequences of his actions. The aggrieved person's reflexive response to
unlawful activities is retribution.

Intellectuals contrast between "positive" and "negative" kinds of retributive justice. This type of
retributive justice maintains that a perpetrator's immorality offers a grounds for penalty and
hence, the government should penalize people found guilty of such heinous criminal offences to
the harsh degree that they deserve, since they inflicted an inhumane amount of pain and torture
on the victim.5 On the other hand negative retributive justice opines that while the major
legitimate goal of judicial penalty is to deter criminals, the government's attempts to deter

4
Mukesh & Anr v. State For NCT of Delhi & Ors., (2017) 6 SCC 1.

5
Stanford Encyclopaedia of Philosophy, Legal Punishment, Jan 2 2001.

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crimes are impeded by restrictions which also prohibit penalizing those who are in fact innocent
and also excessive and uneven punishment of the guilty.6

Retributive justice is not known to particularly get rid of crimes or negative forces or even deter
justice. These are effects that happen automatically with adopting retributive justice. The goal of
retributive justice is to simply restore the line of equilibrium and fairness. 7 In a collective matter
of protest, the whole society and community demands that the governing bodies administer
punitive punishments that are just as inhumane as the heinous crime committed on the victim in
addition to creating a deterrence. This phenomenon is called 'correctional vengeance'.8

Human beings, according to Kant, are free men who have constitutional rights predicated on
their humanity's dignity. In the case that someone infringes on another person's right, it is known
for him to have given up his own right and personal liberties due to his act of invasion and hence
must make peace with the invasion of other people in his life. 9

The theory of retribution is known to be humane as it clears the criminal of a guilty conscience
by giving him/her a chance to cancel out the crime committed repenting for it by suffering the
same way the victim suffered. Not only will a lack of retribution be unfair to the victim, but also
leads to a lack of repentance by the criminal, thus going against the law of justice.10

The Mattoo case is one of the most prominent cases in India where Priyadarshini Mattoo who
was a law student of the age 25 was raped and murdered in the city at her uncle’s place by the
convict Santosh Kumar Singh. The verdict stated that the convict was to be executed by capital
punishment by the Delhi High Court. In 2010, the verdict was overturned and left for a life
imprisonment instead. Santosh Singh was released out in parole and good behavior in 2011 after
spending merely 4 years in jail.11 For a criminal to have only spent 4 years in jail while he was
released out in parole and good behavior while he committed one of the most heinous crimes
ever is one of the biggest fallacies in in the Indian justice system. Without the theories of
deterrence and retributive justice being adopted by the government of India, the crime rates will

6
Ibid.
7
Aristotle in Privette, Theories of Punishment, 29 U.K.C.L. Rnv. 76 (1958).
8
Doctrine of correctional vengeance, Legal punishment Jan 2 2001.
9
Critical anlysis of theories of punishment- Amit Bindal, op. cit.
10
Harris, J.W. Legal Philosophies,(ED).
11
State (Through Cbi) v Santosh Kumar Singh, 2007 CriLJ 964.

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only keep hiking with no indication of ever halting. The heinous action that the defendant
committed necessitated the sentence of death penalty and any punishment that is any less than
that is patently insufficient. As a result, the Supreme Court's decision to commute the death
sentence to a mere life imprisonment is completely immoral and unreasonable.12

Reformative Theory

Famously followed by the Indian system, the possibility of the Reformative Theory is
speculation. According to this theory, the goal of such a theory should be the difference in the
convict, through the methodology for individualization. He doesn't stop to be an individual and it
is up to the state to help imbibe ethical values into the criminal to help them become a valuable
part of the society.13

The Indian system deliberates the use of this system in order to reduce the amount of capital
punishments given out to people. The bench held in a case that it is the duty of the state as well
to ensure that upon release, the offender is contributing to the society in a healthy manner and is
displaying signs of actually having reformed and achieved something from his time in
reformative prison.14

In the case of this theory, while deciding the sentence and punishment, the bench has many
external factors to take into consideration before deciding the final verdict. Social and economic
factors such as the age, character, crime, etc. All the while ensuring rehabilitation of the
criminal.15

Preventive Theory

The preventative theory of punishment seeks to debilitate the offender in order to prevent future
crimes. The deterrence principle is comparable to this concept of punishment. Because of its
civilizing and humane approach, consequentialists like Bentham and Mill favored the
preventative concept. According to a proponent of the preventive theory, the goal of penalty is to

12
Ibid. Judgement.
13
Reflections on some theories of Punishment, Journal of Criminal Law and Criminology, Joel Meyer (1969).
14
State of Gujarat v. Hon’ble High Court of Gujarat, 24.09.1998
15
Reformative theory of punishment in India, Aakriti Gupta, Nov 24, 2021.

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deter future offences, which can be accomplished by immobilizing the perpetrator. The criminal's
disability may be restricted or infinite. 16

Preventive theory proves to be one of the best theories in punishments as it helps draw up an
example to show the citizens and discourage any sort of crime by taking away the weapons from
them and showing them that crime does not pay and causes harm to a person’s future.

The court opined in a case that the main goal of any punishment must be reformative, deterrent,
retributive, preventive and compensatory and that all these theories must be brought together as
to ensure the balance of the same. Using the principle that there is a sinner in very saint and a
saint in every sinner as from the Vedic epics Ramayana, the court held that a criminal must be
reformed but along with the same, prevention and deterrence of the crime must take place as
well. 17

Conclusion and suggestions

It is essential to measure the punishment that is bestowed upon the accused and ensure that the
quantum of punishment matches the atrocity of the crime committed. Different theories as
discussed have different outlooks into law but the best form of punishment would be a balance of
all the theories living up to the justice as enshrined in the constitution. India needs to focus on
the facet of delivering statements and punishments to criminal by measuring the quantum of
harm inflicted by the same; taking in consideration the public opinion, victim’s hurt etc. India
needs to sieve through the crimes in order to decide what theory must be the main focal point of
the crime at hand. India must ensure that no victim goes cheated and unserved by the state. As
much as criminal’s lives are important, retribution for the innocent victim’s life must be made.
India must take suggestions from the Vedic history talking about deterrence, punishments and
retribution. Every state must know what crimes require reformation and what deserves
retribution.

16
Shikha Mishra, Theories of Punishment – A Philosophical Aspect, 76 Imperial Journal of Interdisciplinary
Research (IJIR) Vol2 Issue8 (2016)
17
Dr. Jacob George v state of Kerala, 1994 SCC (3) 430.

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