THERORIES OF PUNISHMENT

DEFINITION:

1. Punishment is a process by which the state inflicts some pain to the persons
or property of person who is found guilty of Crime.
2. The Object of Punishment is to protect society from mischievous and
undesirable elements by deterring potential offenders, by preventing the
actual offenders from committing further offenses and by reforming and
turning them into law abiding citizens.
3. The importance of theories of punishment has been recognized even in
ancient times for the protection and welfare of the State and its people. In
ancient India, the King was duty-bound to punish the offender.
4. The purpose of the administration of criminal justice is to punish the offender.
The state is the main body that punishes Criminals.
5. Punishment is some kind of pain or loss given to the offender for his criminal
act which may either be intended to deter him from repeating the offence or
maybe an expression of society’s disapprobation for his anti-social conduct or
it may also be directed to reform and regenerate him and at the time protect
the society from law-breakers.

1. Deterrent theory of punishment

1. The term deterrent, comes from the word deter which aims at preventing
criminals or individuals from committing the offence of any crime.
2. This keeps in mind that an individual’s probability of committing any crime is
future is lowered and it will generate a fear in their minds so that they are
aware of the consequences of their criminal act. The idea of Deterrent theory
of punishment is a Utopian idea.
3. The objective of deterrent theory is to prevent or deter crime by establishing
fear in the minds of the society or by creating an example before individuals
and since death penalty is an extreme form of punishment, it has the power to
stop such crimes from being committed in future.
4. This can be understood in the words of Dr. Bernett J, who said: Thou art to be
hanged not for having stolen a horse, but in order that other horses may not
be stolen.
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5. This mean that deterrent theory of punishment aims not only at punishing a
criminal but ensuring that the same kind of act is not repeated again in the
future.
6. The founder of this theory Jeremy Bentham based his theory of deterrent on
the principles of hedonism which said that a man would be deterred from
committing a crime if the punishment applied was swift certain and swift
certain and severe

Three major components of the deterrent theory

a. Severity- The punishment must be severe so that the people should afraid to
do the crime and obey the law.
b. Certainty- the punishment must happen every time when the crime occurs.
c. Swiftness- The punishment must be given fast in order to make it more
deterrent.

After knowing these facts, the person will think 10times before doing the crime.
Although the deterrent theory was harsh, it was considered the deterrent theory as
the best theory of punishment as the crime rate was very low due to this theory of
punishment.

In India, inhuman punishments such as mutilation, beheading, flogging were in

vogue till the end of the 18th century.

2. Retributive Theory
1. The Retributivist bases the theory of punishment on the belief that an offender
deserves to receive suffering that matches the severity of the crime
committed.
2. Retributive justice is defined as a form of justice that is committed to giving
wrongdoers punishments that are proportionate to their crimes.
3. Retribution, meaning ‘‘repayment”, comes from the Old
French retribution, retribucion and also directly from the
Latin retibutionem meaning ”recompense, repayment”.
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4. It is the belief that individuals should receive what they deserve according to
their actions. Retribution law is therefore defined as a law system that is
focused on retributive justice as the main method of resolving cases.

The 3 core principles of retribution are:

a. Those who commit certain crimes morally deserve to suffer a proportionate

punishment.
b. This punishment is intrinsically morally good if a legitimate punisher gives
them the punishment they deserve.
c. It is morally wrong and unallowable to intentionally punish the innocent or
inflict punishment that is disproportionate to wrongdoers.

Retributive justice requires that the punishment be proportionate and meted out at
the same level as the crime.

3. Preventive theory
1. 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.
2. Preventive philosophy of punishment based in the proposition to prevent the
crime rather than avenging it. As per this theory, the idea is to keep the
offender away from the society.
3. It says that need for punishment of crime arises simply out of social
necessities. In punishing the criminal the community protect itself from anti-
social acts which endanger social order in general or person or property

a. By instilling the fear of punishment in the mind of a probable offender

b. By disabling an actual offender, either permanently or temporarily
c. By educating the public at large about the threat of the punishment.

4. The Supreme Court held in Dr. Jacob George v. State of Kerala 1994 SCC
(3) 430 that the aim of punishment should be punitive, reformative,
preventive, retributive, and compensatory.
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5. Since offenders are an important part of society, it is also the duty of society
to improve and correct them to make them active members of society. Since
crime avoidance is a significant objective of both culture and law, none of
which should be neglected.

4. Reformative Theory
1. Reformative theory condemns all kinds of corporal punihsments. The mjor
emphasis of the reformst movement is rehabilitation of inmates in peno-
correctional institutions so that they are transformed into law abiding citizens
2. These correctional institutions have either maximum or minimum security
arrangements.
3. The reformist advocate human treatment of inmates inside the prison
institutions they also suggest that prisoner should be properly trained to adjust
themselves to free life in society after their release from the institution.
4. The agencies such as parole and probation are recommended as the best
measures to return offenders to society as reformed persons
5. The main objective of punishment should be to reform the criminal.
6. Criminals are to be ‘treated’ in order to cure them of their sickness and make
them emotionally healthy, law abiding citizens just like the rest of us. The goal
of rehabilitation is to re-socialize offender by building into them the motivation
to obey the law.'”
7. In the landmark case of DK Basu v. State of West Bengal (1997 ) 1 SCC
416 the Supreme Court ruled that a victim who is under the protection of the
state has every right to compensation because the officer of the state has
violated her Right to Life, which is covered under Article 21 of the
Constitution.