CRIMINOLOGY “ THEORIES OF PUNISHMENT”

Submitted to: Submitted by: Ms.Neda Soumya Singh Vth Semester1 | P a g e

Faculty of Law JAMIA MILLIA ISLAMIA

INDEX1.ACKNOWLEDGEMENT …32.AIMS AND OBJECTIVES OF PUNISHMENT …43.BACKGROUND …64.THEORIES OF PUNISHMENT …85.DETERRENT THEORY …96.RETRIBUTIVE THEORY …107.PREVENTIVE THEORY …118.REFORMATIVE THEORY …129.PUNISHMENT UNDER CODE …1410. NEW FORMS OF PUNISHMENT

…1811. DEATH PENALTY UNDER PENAL

CODE …2112. CONCLUSION

…2313. BIBLIOGRAPHY

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ACKNOWLEDGEMENT

It is my imperative duty to thank the following people for the successful completion of my work on the project topic “ THEORIES OF PUNISHMENT”. • Ms. Neda for the clarity she brings into teaching thus enabling us to have a better understanding of his subject. I also feel obliged to thank her for providing us with such wide range of topics to choose from.

• My resourceful classmates, whom I ran into the library, thus un expectedly starting and successfully completing a rough handwritten draft of this project.

• The very cooperative and friendly staff members in the Central and Law Library as well as our Faculty’s Library who were instrumental and suggestive in our finding the necessary books without wasting much time

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Aims and Objective of Punishment:Criminal law reflects those fundamental social values expressing the way

people live and interact with each other in the society. It uses the ‘stick’ of

punishment as a mean of reinforcing those values and securing compliance

therewith. In this way criminal law seeks to protect not to individual, but also

the very structure and fabric of society from undesirable, nefarious and

notorious activities and behaviour of such individuals and organizations who try

to disrupt and disturb public peace, tranquillity and harmony in the society1. The

object of criminal legislation is to prevent the perpetration of acts classified as

criminal because they are regarded as being socially damaging. The

transgression of such harmful acts in modern times is prevented by a threat or

sanction imposed on an accused for the infringement of the established rules

and norms of society.

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 crimes and reforming and truing them into

law abiding citizens. It is also asserted that respect for law grows largely out of

opposition to those who violate the law. The public dislikes a criminal and this

dislike is expressed in the form of punishment. The object of punishment has

1 C.M.V Clarkson understanding criminal law, William Collins, 1987, pp. 166-168

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been very well summarised by Manu, the great Hindu Law-giver in the

following words:

Punishments governs all mankind; punishment alones preserve them;

punishment wakes while guards are asleep; the wise consider the punishment

(danda) as the perfection of justice2.

The protection of society and security of person’s life, liberty and property is an

essential function of the state. This could be achieved through instrumentality of

criminal law by imposing appropriate sentence and stamping out criminal

proclivity (tendency). Law as a cornerstone of the edifice of ‘order’ should meet

the challenges confronting the society3. As stated by Friedman in his book ‘Law

in Changing Society’:

“State of Criminal law continues to be-as it should be-a decisive reflection of

social conscious of society”

In operating the sentencing system, law should adopt the corrective machinery

or the deterrence based on factual matrix; sentencing process is stern where it

should be, and tempered with mercy where it warrants to be.

The concept of punishment — its definition — and its practical application and

justification during the past half-century have shown a marked drift away from

efforts to reform and rehabilitate offenders in favor of retribution and

incarceration. Punishment in its very conception is now acknowledged to be an

inherently retributive practice, whatever may be the further role of retribution as

a (or the) justification or goal of punishment. A liberal justification of

punishment would proceed by showing that society needs the threat and the

practice of punishment, because the goal of social order cannot be achieved

otherwise and because it is unfair to expect victims of criminal aggression to

2 Institute of Hindu law Ch. 7, para 18, p 189.3 State of Madhya Pradesh v. Munna Choubey, AIR 2005 SC 682.

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bear the cost of their victimization. Constraints on the use of threatened

punishments (such as due process of law) are of course necessary, given the

ways in which authority and power can be abused. Such a justification involves

both deontological as well as consequentialist considerations.

Background

Philosophical reflection on punishment has helped cause, and is itself partially

an effect of, developments in the understanding of punishment that have taken

place outside the academy in the real world of political life. A generation ago

sociologists, criminologists, and penologists became disenchanted with the

rehabilitative effects (as measured by reductions in offender recidivism) of

programs conducted in prisons aimed at this end (Martinson 1974). This

disenchantment led to skepticism about the feasibility of the very aim of

rehabilitation within the framework of existing penal philosophy. To these were

added skepticism over the deterrent effects of punishment (whether special,

aimed at the offender, or general, aimed at the public) and as an effective goal

to pursue in punishment. That left, apparently, only two possible rational aims

to pursue in the practice of punishment under law: Social defense through

incarceration, and retributivism. Public policy advocates insisted that the best

thing to do with convicted offenders was to imprison them, in the belief that the

most economical way to reduce crime was to incapacitate known recidivists via

incarceration, or even death (Wilson 1975). Whatever else may be true, this aim

at least has been achieved on a breathtaking scale, as the enormous growth in

the number of state and federal prisoners in the United States (some 2.1 million

in year 2005, including over 3,700 on “death row”) attests.

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At the same time that enthusiasm for incarceration and incapacitation was

growing as the preferred methods of punishment, dissatisfaction with the

indeterminate prison sentence — crucial to any rehabilitative scheme because of

the discretion it grants to penal officials — on grounds of fairness led policy

analysts to search for another approach. Fairness in sentencing seemed most

likely to be achievable if a criminal sentence was of a determinate rather than

indeterminate duration (Allen 1981). But even determinate sentencing would

not be fair unless the sentences so authorized were the punishments that

convicted offenders deserved. Thus was born the doctrine of “just deserts” in

sentencing, which effectively combined the two ideas.[1] By this route the goals

of incapacitation and retribution came to dominate, and in some quarters

completely supersede, the goals of rehabilitation and deterrence in the minds of

politicians and social theorists.

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Theories Of Punishment:With 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 and the crucial problems relating to them. 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 he

feelings of oppression and injustice felt by the individuals.

The general view that the researcher finds is that the researcher gathers is that

the theories of punishment being so vague are difficult to discuss as such. In the

words of Sir John Salmond, “The ends of criminal justice are four in number,

and in respect to the purposes served by the them punishment can be divided as:

1. Deterrent

2. Retributive

3. Preventive 

4. Reformative

Of these aspects the first is the essential and the all-important one, the others

being merely accessory. Punishment before all things is deterrent, and the chief

end of the law of crime is to make the evil-doer an example and a warning to all

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that are like-minded with him.

Deterrent Theory: 

One of the primitive methods of punishments believes in the fact that if severe

punishments were inflicted on the offender would deter him form 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. Pleasure and

pain are two physical feelings or sensation that nature has provided to mankind,

to enable him to do certain things or to desist from certain things, or to undo

wrong things previously done by him. It is like providing both a powerful

engine and an equally powerful brake in the automobile. Impelled by taste and

good appetite, which are feelings of pleasure a man over-eats. Gluttony and

surfeit make him obese and he starts suffering disease. This causes pain. He

consults a doctor and thereafter starts dieting . Thus the person before eating in

the same way would think twice and may not at all take that food. In social life

punishment introduces the element of 'pain' to correct the excess action of a

person carried out by the impulse (pleasure) of his mind. We all like very much

to seize opportunities, but abhor when we face threats. But in reality pain, threat

or challenges actually strengthens and purifies a man and so an organization

The basic idea of deterrence is to deter both offenders and others from

committing a similar offence. But also in Bentham's theory was the idea that

punishment would also provide an opportunity for reform.

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In earlier days a criminal act was considered to be due to the influence of some

evil spirit on the offender for which he was unwillingly was made to do that

wrong. Thus to correct that offender the society retorted to severe deterrent

policies and forms of the government as this wrongful act was take as an

challenge to the God and the religion.

But in spite of all these efforts there are some lacunae in this theory. This theory

is unable to deter the activity of the 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, that is precisely

because as this theory is based on certain restrictions, these criminals are not

effected at all by these restrictions rather they tend to enjoy these restrictions

more than they enjoy their freedom.

Retributive Theory:...An eye for an eye would turn the whole world blind- Mahatma Gandhi

retributive punishment, in the only sense in which it is admissible in any

rational system of administering justice, is that which serves for the satisfaction

of that emotion of retributive indignation which in all healthy communities is

strived up by injustice. This was formerly based on theory of revenge.-“tooth

for tooth” and “eye for eye”.

Today, on the other hand, this theory is based on the idea that punishment is the

necessary alkali to neutralize the evil effects of crime. The idea behind the

retributive punishment is that of the restoration of the moral character, the

appraisement of the disturbed conscience of society itself and the maintenance

of the sovereign power of the state which becomes aggrieved when a crime is

committed and inflicts punishment to set matters of right. Though the system of

private revenge has been suppressed, the instincts and emotion that lay at the

root of these feelings are yet present in human nature. Therefore, according to

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this moral satisfaction that the society obtains from punishment can not be

ignored.

On the other hand, if the criminal is treated very leniently or even in the midst

of luxury, as the reformative theory would have it, the spirit of vengeance

would not be satisfied and it might find its way through private vengeance.

According to this theory eye for eye and tooth for tooth is deemed to be a

complete and really sufficient rule of natural justice.

In the last, we can easily say that the only logical inference from the reformative

theory, if taken itself, is that they should be abandoned in despairs as no fit

subject for penal discipline. The deterrent and disabling theories on the other

hand, regard such offenders as being pre-eminently those with whom the

criminal law is called upon to deal.

The application of purely reformative theory, therefore would lead to

astonishing and inadmissible results. The perfect idea of criminal justice is

based on neither reformative nor the deterrent principle exclusively, but the

result of comprise between them.

In this it is the deterrent principal which possesses predominant influence. It

will not be out of place to mention here that Gandhi ji “hate the sin and not the

sinner”, is merely a philosophical assertion and cannot furnish a practical guide

in the administration of justice

Preventive Theory:Unlike the former theories, this theory aims to prevent the crime rather then

avenging 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

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i.e. while sending the criminals to the prisons the society is in turn trying to

prevent the offender from doing any other crime and thus protecting the society

from any anti-social elements.

Thus one an easily say that preventive theory though aiming at preventing the

crime to happen in the future but it still has some aspects which are questioned

by the penologists as it contains in its techniques which are quite harsh in

nature. The major problem with these type of theories is that they make the

criminal more violent rather than changing him to a better individual. The last

theory of punishment being the most humane of all looks into this aspect.

Reformative Theory:But that is the beginning of a new story--the story of the gradual Renewal of a

man, the story of his gradual regeneration, of his Passing from one world into

another, of his initiation into a new Unknown life.

The most recent and the most humane of all theories is based on the principle of

reforming the legal 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 reformed and leading a law-abiding life all-

together. Reformative techniques are much close to the deterrent techniques.

This theory aims at rehabilitating the offender to the norms of the society i.e.

into law-abiding member. This theory condemns all kinds of corporal

punishments. These aim at transforming the law-offenders in such a way that

the inmates of the peno-correctional institutions can lead a life like a normal

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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 or parole 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, but in the

case of hardened criminals this theory may not work with the effectiveness. In

these cases come the importance of the deterrence theories and the retributive

theories. Thus each of these four theories have their own pros and cons and each

being important in it, none can be ignored as such.

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Punishment under Code:

The Penal Code in section 53 to 75 has provided for a graded system of

punishment to suit the different categories of offences for which the offenders

are accountable under it. The criminal law adheres in general to the culpability

of each kind of criminal conduct. It ordinarily allows some significant discretion

to the Judge in arriving at a sentence in each case, presumably to permit

sentences that reflects more subtle consideration of culpability that are raised by

the special facts of each case. Judges in essence affirm that punishment ought

always to fit the crime: yet in practise sentences are determined largely by other

consideration, sometimes, it is the correction needs of the perpetrator that are

offered to justify a sentences, sometimes even the tragic results of his crime.

Section 53 prescribes five types of punishments4 to be meted out to a person

convicted of a crime under the Code, depending on the nature and gravity of the

offence, viz:

i. Death,

ii. Imprisonment for life,

iii. Imprisonment, rigorous with hard labour,

iv. Forfeiture of property;

v. Fine

4 IPC (Amendment) Bill, 1978

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(1) Death Penalty

It is the most grave penalty imposed by IPC. Many sections still prescribe the

punishment of death. Some of them are as follows:

 (a) Offence under Section 194 IPC where a person gives false evidence with

intention to cause any person to be convicted of capital punishment and if an

innocent person is convicted and executed in consequence of such false

evidence, the person who gives such false evidence shall be punished with death

or life imprisonment or rigorous imprisonment and fine. 

 (b) Offence of murder for which punishment of death or imprisonment of life is

prescribed under Section 302.

 (c) Offence of murder committed by life convict as described in Section 303.

This section has been held unconstitutional by the Supreme Court in Mithu v.

State of Punjab[AIR 1983 SC 473]. The peculiarity of this Section is that

punishment of death only is provided. No other alternative punishment is seen

provided.

 (d) Offence of abetting suicide of child or insane person as mentioned in

Section 305 IPC where death is a punishment with other alternative

punishments.

 (e) In Section 307 when a life convict attempts to murder and hurt is caused

Death Sentence may be imposed. 

 (f) Kidnapping for ransom as described under Section 364A may be met with

punishment of Death alongwith other alternative punishments.

 (g) If any one of five or more person s who are conjointly committing dacoity,

commits murder in so committing dacoity, every one of those persons shall be

punished with death along with other alternative punishments.

In Bachan Singh v. State of Punjab[AIR 1980 SC 898] hon'ble Supreme

Court of India held that death sentence is to be given only in rarest of rare cases.

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(2) Life Imprisonment

Living behind the bars are sometimes far more painful than death sentence. It is

the most popular type of sentence after death penalty. In most serious offences

this type of punishment is prescribed. Wherever death penalty is prescribed, life

imprisonment also finds a place as an alternative punishment. As there is hue

and cry regarding imposing of death penalty, in appropriate cases Courts impose

life imprisonment as a safe method. Some sections which impose Life

Imprisonment as a penalty are : Sections 194, 255, 304, 304(B), 305, 307, 311,

313, 314, 326, 329, 364, 364(A), 376, 377, 394, 395, 396, 400, 409, 412, 413,

436, 449, 459, 460, 467, 472, 477, 489A, 489B, 489D and 511.

(3) Imprisonment both rigorous and simple.

Rigorous imprisonment is of such type where the convict will have to do hard

labour. In many offences the period of imprisonment varies. In simple

imprisonment also the term of imprisonment varies according to offences.

(4) Forfeiture of Property

Forfeiture of property is not very common in IPC. Section 61 which specified

sentence of forfeiture of property has been repealed by Indian Penal Code

(Amendment) Act, 1921. In the present IPC three sections viz 126, 127 and 129

describes forfeiture of property.

(5) Fine

IPC prescribes fine as a penalty both independent and along with other

penalties. The amount of fine varies with offences. Section 63 says that where

no sum is expressed to which a fine may extend, the amount of fine to which the

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offender is liable is unlimited, but shall not be excessive. Sentence for non-

payment of fine is also dealt with in IPC[Sec.64].

Thus there are various penalties as discussed above which are imposed

differently in different offences. The term, nature, amount etc varies in each

cases and offences and also according to Courts. Although all types of

punishments like retributive, reformative, preventive, deterrent are provided in

IPC it is stated that reformative approach to punishment should be the object of

criminal law.[AIR 1978 SC 1542]

Whipping:

The corporal punishment of whipping, added in the Indian Penal Code by the

Wiping Act of 1864 as punishment for certain crimes, was abolished in 1955 in

view of the inhuman and cruel nature of the sentence. Such a punishment was

considered a barbarous act, a stain on civilization and a blot on the statute book.

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New Forms of Punishment :

It is suggested to add five new forms of punishment to the existing ones in the

section 53, IPC with a view to deter particular types of criminals. Such

punishments will have more psychological, social and moral impact on the

criminals and will go a long way in curbing crimes. The proposed punishments

are:

i. Externment,

ii. Compensation,

iii. Public Censure,

iv. Community service,

v. Disqualification from holding public office.

Externment:

Exrternment or banishment is a form of punishment in which an accused is sent

out of the place of his abode to another place for a specified period of time as

mentioned in the order issued by the court. This is done to deprive the accused

of the company of his family, friends and associates so that he or she may not

indulge in criminal activities. For instance, Bombay Police Act, 1951, Delhi

Police Act, 1964, C.P Gonda Act 1949 and some other states have provided for

such type of punishment to deal with hardened criminals effectively in their

jurisdiction and ensuring adequate procedural safeguard5.

5 N.B khare v. State of Delhi, AIR 1950; Hari v. Dy Commissioner of Police, AIR 1956; Gurbachan Singh v. State of Bombay, AIR 1952; Prem Chand v. Union of India, AIR 1981.

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Compensation:

Unfortunately, victims of the crime in our society do not attract the attention of

the lawmakers. Criminal Procedure Code 1973 in section 357 has empowered

the court to award compensation to the victims of crime in very limited cases at

the time of delivering judgement. For instance the power to award

compensation to the victims under sub section (1) of section 357 of Cr PC is

confined to only those cases where the court imposes a fine and that amount is

limited to the fine only. And sub-section (3) of section 357 says compensation

can be awarded only if a sentence of fine is not imposed. The apex court in

Sarwan Singh v. State of Punjab6 recommend to all courts to exercise the power

to grant compensation and said that, “This power of court to award

compensation is not ancillary to others sentences, but it is in addition thereto.”

It is therefore suggested that compensation or reparation to the victims of crime

be included as a form of punishment under section 53 of IPC.

Public Censure:

Public Censure or social censure is one of the methods of punishment

prescribed in some of the countries like Russia, Columbia in respect of certain

offences of anti-social in nature, while white collar crimes, tax crimes, food

adulteration, etc. The law Commission of India in 42nd report on Indian Penal

Code has suggested ‘Public censure’ as one of the modes of punishment in

respect of certain class of offences prescribed under Indian Penal Code.

6 AIR 1987 SC 1525

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Community service:

Community service or corrective labour is a form of punishment in which the

convict is not deprived of his liberty. A corrective labour is served either at the

place of accused’s ordinary work place., or in a special corrective labour

institution in the locality where the accused is domiciled. The accused is paid

emoluments for the work after adjusting a part of the amount towards

establishments and maintenance cost, etc.

Disqualification from holding Public office:

Disqualification to hold public office and to contest election as a form of

punishment will have adequate and desired deterrent sanction, if sincerely

implemented. The apex court on 13th March, 2003 delivered a laudable verdict

making mandatory for candidates seeking election to disclose their criminal

antecedents, assets and liabilities with educational qualification in the

nomination paper7.

7 Times of India March 14, pg 1

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Death Penalty under Penal Code:

The sentence for death is the most extreme punishment provided under the Code

in eight cases. Regarding ‘Death’ as a punishment, the authors of the code have

categorically stated that it ought to be very sparingly inflicted in exceptional

cases where either murder or the highest offence against the state has been

committed. Death sentence under the Code to which offenders may be

sentenced are:

i. Waging or attempting to wage war or abetting waging war against the

Government of India. (Section 121).

ii. Abetting mutiny actually committed (section 132).

iii. Giving or fabricating false evidence upon which an innocent person

suffers death (section 194).

iv. Murder which may be punished with death or life imprisonment (section

302).

v. Abetment of suicide of a minor, or insane, or intoxicated person (section

305).

vi. Attempt to murder by a person under sentence of imprisonment for life, if

hurt is caused (section 307).

vii. Kidnapping for ransom, etc. (section 364A).

viii. Dacoity accompanied with murder (section 369).

Death Penalty under laws other than Penal Code:

Besides the Penal Code Death sentence may be awarded under the following:

1. The Indian Air force Act, 1950,

2. The Army Act 1950,

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3. The Navy Act 1950,

4. The National Security Guards Act, 1986,

5. The Commission of Sati Act, 1987,

6. The Narcotics Drugs and Psychotropic Substance Act, 1985,

7. The Schedule Castes and Scheduled Tribe (prevention) Act, 1989.

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Conclusion

Punishment is the authoritative imposition of something negative

or unpleasant on a person or animal in response to behaviour deemed wrong by

an individual or group. The authority may be either a group or a single person,

and punishment may be carried out formally under a system of law or

informally in other kinds of social settings such as within a family. Negative

consequences that are not authorized or that are administered without a breach

of rules are not considered to be punishment as defined here. The study and

practice of the punishment of crimes, particularly as it applies to imprisonment,

is called penology, or, often in modern texts, corrections; in this context, the

punishment process is euphemistically called "correctional process".

Fundamental justifications for punishment

include: retribution, deterrence, rehabilitation, and incapacitations such as

isolation in order to prevent the wrongdoer's having contact with potential

victims. Of the four justifications, only retribution is part of the definition of

punishment and none of the other justifications are guaranteed outcomes.

If only some of the conditions included in the definition of punishment are

present, descriptions other than "punishment" may be considered more accurate.

Inflicting something negative, or unpleasant, on a person or animal, without

authority is considered either spite or revenge rather than punishment. In

addition, the word "punishment" is used as a metaphor, as when a boxer

experiences "punishment" during a fight. In other situations breaking the rules

may be rewarded, and is therefore without negative consequences, and so

cannot be considered punishment. Finally the condition of breaking (or

breaching) the rules must be satisfied to be considered punishment.

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Bibliography

Tort 10th edition by W.V.H Rogers (1984)

Smith and Hogan Criminal law, 6th edn,(1988)

K.D.Gaur, A textbook on the I.P.C (1998)

K.D.Gaur, Criminal Law: Cases and Materials (1999)

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