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Theories of Punishment


Authored by - Shreya Yadav

Keywords - Theories of Punishment, Deterrence Theory, Preventive Theory, Reformative Theory, Retributive Theory, Compensatory Theory.


Abstract


The different theories of punishment have a different perspective as of the criminal or way of punishment but it always had the same objective. The objective of punishment has always been a safer society and to lessen crimes in society. Certain ways of punishment have been discontinued being too barbaric and new ways involving care homes, mental asylums, etc being run in a way of rehabilitation of the person.

Introduction


“Punishment is evil in the form of remedy which operates by fear,” said Jeremy Bentham.

The term punishment indicates towards the offenders restraining freedom, to repenting, to cause pain to the offender not bodily but mentally and emotionally[1]. Sometimes, it could be bodily depending upon the circumstances of the case. There are various reasons to furnish punishment such as protection of society, deterrence, and so that the offender does not commit the crime again but the major aim is that the state must furnish punishment rather than victims or related people to the crime start giving punishment.

There have always been different thought processes of people as to the way of looking at the criminals. The traditional approach focuses on the fact that society needs to be protected from the bad people that are criminals. A more modern approach can be said that of the rehabilitation of the criminals and understanding their troubles which led to such acts. One more thought can be said as people thinking in prevention that is the eradication of circumstances that lead to crimes.[2]

Types of Theories

Deterrence Theory


This theory states setting punishment as a message or lesson to the offender or the society as a whole. Giving punishment for the acts done by the offenders which are against the law of the nation, would set an example for others to not commit crime as well as the society to refrain from it, which can be respectively said as specific deterrence and general deterrence[3]. As stated by Glanville Williams, punishment is most importantly deterrent as the law of crime's foremost aim is to set an example of the offender and put off others from committing such offenses.


Preventive Theory


This theory advocates the incapacitation of the offender and the death penalty to the offenders as they need to be separated from society to prevent them from committing further crime. As the fact states that prevention is better than cure which can be said as the principle of this theory. In this theory, the offenders are physically restrained as they lack self- control and for the prevention of committing the further crime, it is done so.


Reformative/ Rehabilitative Theory


As the development of the welfare state, the focus on offenders as bad people was changed to that people due to certain circumstances commit a crime and they need to be reformed, then this theory came into existence. This theory is based on the concept that the moral fiber of the offender can be changed as it gives a chance to the offender to do penance. As stated by Krishna Iyer in the case of Mohd. Giasuddin vs. State of U.P[4] that reformation must be the aim of punishment while individualization.

Retributive Theory


This theory is based on the basic principle “an eye for an eye” which in simple terms means that the offender must suffer the same as the victim. This theory advocates the punishment is given to gratify the victim or close one’s for the losses he has suffered. A Roman doctrine Poena sous Tenere debet actors etnon alios, which means that punishment belongs to the guilty and not to others. “You hurt me I will hurt you”[5] the literal meaning of retributive theory but it does not give the rights to the victim to avenge but the state does it for the victim.


Expiatory/ Compensatory Theory


In this theory, the offender is punished or fined in the form of money. The object of this theory is that the offender needs to pay for the offense committed for the benefit of the victim, not only prevention of crime. This compensatory theory works on two principles[6] as the offender has inflicted pain which the victim has suffered through monetary or mental the offender has to pay for the losses suffered. Second, the state is liable to protect the victim which it failed to do so compensation is required to be given to the victim.

Conclusion


All the theories have been propounded considering one or the other thing but no one theory can be said to be wholesome when applied to the offender as similar to the theories of crime which states what causes the crimes to occur. A similar thought was stated in the case, Dr.Jacob George v. the State of Kerala[7], that giving predilection towards one theory is not a good idea. Combining one or more theories and individualization the theories as per the facts and circumstances is the best technique of giving punishment

References

[1] Crime and theories of punishment. Shodhganga. Retrieved 09 August 2020, from https://shodhganga.inflibnet.ac.in/bitstream/10603/45012/9/09_chapter%204.pdf.

[2] Mishra, S. (2016). Theories of Punishment – A Philosophical Aspect. Imperial Journal Of Interdisciplinary Research, 2(8), 74-78. Retrieved 11 August 2020, from http://www.onlinejournal.in/IJIRV2I8/014.pdf.

[3] Nirmala, M. (2009). Criminology (teaching material).

[4] 1977 AIR 1926, 1978 SCR (1) 153

[5] Theories of punishment. Shodganga. Retrieved 10 August 2020, from https://shodhganga.inflibnet.ac.in/bitstream/10603/105349/11/11_chapter%204.pdf.

[6] Crtical Analysis of theories of punishment. JSS law college. (2013). Retrieved 9 August 2020, from http://jsslawcollege.in/wp-content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-PUNISHMENT1.pdf.

[7] 1994 Cr.L.J. 3851 SC