Theories of Punishment in the subject Jurisprudence

Theories of Punishment

1. Theories of Punishment

2. Introduction Punishment is the primary sanction of criminal law. It is a penalty imposed by a court of law on a convicted criminal. To provide punishment to a person is to deprive him of the basic rights granted to a citizen . presence of provisions that provide for punishment is vital to maintain law and order in society and to make sure that no one is deprived of social, economic, and political justice

3. The importance of punishment is very well quoted in the lines of the Manu  "penalty keeps the people in restraint, penalty protects them, the penalty remains awake when people are asleep, therefore the wise have regarded punishment may be a source of righteousness".

4. Theories of Punishment Deterrent- Retributive Preventive Reformative Expiatory

5. Deterrent Theory The act of incapacitating someone from inflicting harm is known as incapacitation, and it takes the form of a cure that is implemented by arrest and is known as the deterrent theory . The meaning of the word 'Deter' in the Deterrent Theory of punishment is to refrain someone from committing a crime . A man may be punished not just because he has committed an illegal act, but also to ensure that crime is not committed'. Thus, the objective of this theory is to deter or prevent criminals from attempting a new crime or committing the same ones again in the future.

6. Theory aims to deter crime by inculcating fear through punishment so that it sets an example for the wrongdoers as well as the entire society.  Social contract thinkers like Jeremy Bentham, Thomas Hobbes and Cesare Beccaria were the ones to lay the foundation of modern deterrence in criminology. These theorists were of the opinion that if the punishment is certain, swift, and severe, then a sane person will compare the pros and cons of any act that might violate the law and its aftermath.

7. By looking at the theories of these great jurists, it can be said that the theory of deterrence is constituted of 3 major elements: Severity-  It refers to the severity of punishment being awarded to an offender. To restrict and rehabilitate the criminals it is important to include provisions of punishment and penalties in our legal framework. But at the same time, it is made sure that the rigidness of punishment granted should be proportionate to the severity of the offence being committed or else the objective of punishment to deter the criminals would be wasted .

8. Certainty-  If anything wrong happens, the wrongdoer must be certainly punished. Philosopher Cesare Beccaria was of the option that to restrict a person from committing or repeating a crime, it must be certain in the mind of the culprit that his undesirable act will be punished. Celerity-  The attainment of provisions of punishment is made sure by the promptness in its implementation. The faster the prosecution takes place and punishment is imposed, the greater the impact it will have on deterring crime.

9. Criticism The deterrent theory follows the principle  " Ignorantia Juris Non Excusat " which when translated means that "ignorance of law is no excuse", as it is considered that people are responsible for knowing and following the law, regardless of whether they were aware of it. Thus, it does not address the underlying causes of criminal behaviour or treatment of society towards him and thus is criticized by several jurists as it is deemed ineffective in reducing crime.

10. Retributive-   Retributive theory is the most basic and ancient theory of punishment. Based on the Doctrine of Lex talionis , which when literally translated means , "Tooth for Tooth, Eye for Eye, Limb for Limb and Nail for Nail ". According to Sir John Salmond, the purpose of a retributive form of punishment is to retaliate the harm inflicted by a criminal onto society

11. Jurists who believe in this theory make the point that by punishing the people committing a crime, they get to understand the pain suffered by their victim and the degree of immortality in his action. Also known as the Vengeance Theory, this form of punishment also sends a message to society that the legal system is present in the country to protect them and uproot the unfair advantage possessed by a criminal while committing a crime.

12. Criticism - While awarding retributive punishments, it is to be made sure that the offence for which it is granted is severe as disproportion with it may lead to the development of strong vengeful or destructive feelings in the society. Also, with zero accountability in the legal sphere about the sanctioning of capital punishment, the state might have hegemony over it and use it to torture people.

13. Criticism - While awarding retributive punishments, it is to be made sure that the offence for which it is granted is severe as disproportion with it may lead to the development of strong vengeful or destructive feelings in the society. Also, with zero accountability in the legal sphere about the sanctioning of capital punishment, the state might have hegemony over it and use it to torture people.

14. Preventive theory Supported by the believers of the Utilitarian theory, like Austin, Bentham, and Mill, preventive theory quest to incapacitate criminals to prevent anticipated crimes, whether of similar or varying nature. The philanthropic nature of the theory is a reason why these jurists believed in it.

15. The theory aims at restraining future danger by transforming the criminal either temporally or permanently. This is done by isolating the offender from rest of the society, either temporarily by incarceration for a specific period or permanently by awarding lifetime imprisonment and in instances of rarest of the rare cases, by application of capital punishment.

16. Prevention theory is somewhat closely linked to the deterrent theory. While the latter is to deter society, the former focuses on preventing the offender from committing the crime. Three dominant ways of advancing preventive punishment are: by inculcating fear of punishment, by incapacitating a criminal temporarily or permanently, and by advancing reformative types of punishments that aim at restoring them as law-abiding citizens.

17. Criticism - Jurists and penologists who are not in favour of the preventive form of punishment are of thought that creating a sense of terror in the minds of offenders or disabling the criminals from committing a crime might not be proven to be effective at lowering the crime rates as it does not address the root of criminal behaviour . Especially in the context of juveniles and first-time offenders as it may harden them even more eradicating the scope to reform them completely.

18. Reformative-  Premised on the principle laid by Mahatma Gandhi, father of reformative theory,  "Condemn the Sin, not the Sinner" , the reformative theory, also known as rehabilitative sentencing, is of the thought that the aim of the penal system of a state should be to reform the criminal through the approach of individualization and not by purely punishing him. This theory is based on the humane concept that just by committing a crime, the wrongdoer shall not cease to be a human being. Supporter of this theory contends that sympathetic, tactful, and loving treatment of an offender can transform him into an orderly and law-abiding citizen.

19. The observation made by Justice Krishna Iyer in the case of Mohd . Giasuddin v. State of Andhra Pradesh 1 :  "Every saint has a past, and every sinner has a future"  encapsulates this theory.

20. Expiatory Theory - Predicated on the principles of ethics and morals, the Expiatory theory of punishment is of the view that repentance or expiration by the offender itself is a punishment. This theory focuses on conscience-oriented cleansing of hearts through repentance, compunction, atonement, and reparation. Expiatory Theory is one of the most ancient theories of punishment prevalent in ancient Indian criminal jurisprudence and was deeply admired by the ancient Hindu law commentator, the Manusmriti as a form of punishment focusing on the rehabilitation of criminals in society. With the advancement in society, the application of this theory became inadequate and experimenting to rely completely on this theory is way too expensive in terms of communal safety and security.

21. Criticism - In the present era of materialism and precedence where every single being is just busy justifying their acts in one way or another, expiratory punishments can hardly be deemed effective in bringing any reformation in the criminal mentality of offenders. Therefore, the type of punishments advocated by this theory may be ample to meet trivial and petty offences but about the heinous ones, it is reckoned as too idealistic and thus is considered impractical.