Since the beginning of time, the society of human beings has been moulded in a way that it enacts laws that serve as the yardstick for measuring human conduct. These laws also mention the sanctions along with them. These sanctions are in the form of punishments. The punishment imposed can be of several types depending on the gravity of the crime, the background of the criminal and the society in which the crime is being committed, There are several theories of punishment which act as a guideline for imposition of punishment.
The premise of the deterrent theory of punishment can be understood by laying emphasis on the term ‘Deterrent’. A deterrent act is an act done to discourage someone from doing something. The deterrent theory of punishment is a theory that seeks to create a situation by which the offender is deterred from committing an offence. The theory states that punishment should serve as a medium to discourage the offender from committing an offence. Jeremy Benham went to the extent of awarding death sentence as a medium of deterrence. Glanville Williams states deterrence as the ultimate objective of punishment. It advocates the creation of an example out of the offender to serve as a deterrent factor for the society and the offender. Plato, Fighter, Locke are the advocates of this theory. This theory was also quite popular amongst the Hindu and Moghul ruler. The object of his theory is to make an example out of the wrong-doer so as to deter him or like-minded people of the society from committing the same mistake.
The justification often provided for the deterrent theory is that it deters the offender from committing a crime. This theory seeks to change the future by creating fear in the mind of the wrongdoer. By inflicting fear in his mind, it attempts to harmonize the interests of the wrongdoer with that of society. The theory makes offence a bad bargain in the eyes of the wrong-doer and thereby, influences his future behaviour.
Theory of Retribution
It will not be erroneous to state that the retributive theory of punishment is a philosophy that is driven by the vengeance of the victim upon the offender. The theory presumes the presence of two actors: the victim and the offender. The retributive theory of punishment is built upon the edifice of the vengeance that builds in the mind of the victim from the loss caused by the doer of the crime. It is driven by the theory of ‘an eye for an eye, a tooth for a tooth’.
There is a second interpretation of the theory of retribution. It states that by committing a crime, the offender incurs a debt which he must pay. The repayment of the debt serves as a condition for the society to re-accept him as a part of their clan. The debt can be extinguished only when the wrong-doer endures the punishment inflicted upon him.
The theory found relevance in primitive societies. The degree of harshness and the barbaric nature of the punishment has rendered the theory to be obsolete during modern times.
The retributive theory of punishment, quite contrary to popular belief, is not a barbaric theory. On the contrary, it is a theory that caters to the interest of society. The theory does not advocate the infliction of punishment that is lesser in degree than the crime committed or more than it. It paves way for the infliction of a punishment that is proportional to the crime. It neither favours the criminal nor the victim. It works for the benefit of society.
The retributive theory is based on the doctrine nulla poens sine leges and nulla peona sine crimen, which means no punishment can be imposed outside the law, and no punishment can be inflicted except for the crime committed. A lenient approach to punishment would harm the justice system. It destroys the confidence of the public in the efficacy of law. The punishment should be stern or tempered with mercy depending on the facts of the case.
It is a neutral theory that is inclined neither towards the offender nor the victim.
An inefficient system of justice administration fails to command respect in the eyes of the public. It fails in the redressal of grievances. This would lead to the creation of a system whereby the society finds it necessary to take justice in their own hands which would, in turn, shift the clock backwards and push the human civilization a thousand years back into a primitive society.
The retributive theory of punishment is not inconsistent with mercy. It does not treat an individual as an outcast once he endures the punishment inflicted. It does not provide a ground for stigmatization. It provides a window of opportunity to the offender to be accepted by the society once he pays off his debt in the form of punishment.
Criminal law is often criticized for diverting its entire attention to the criminal, his reformation, his deterrence while the victim remains engulfed in a shadow of grief and doubt. The theory of compensation is a reaction to this criticism. The theory supplies emphasis on the victim than on the criminal. It justifies compensation on two grounds: Firstly, the victim has suffered a wrong for which the offender must pay compensation. Secondly, the state has failed to protect the victim. It is on the basis of these grounds that it justifies compensation.
The Criminal Procedure Code, 1973 (CrPC) under Section 357 also empowers the court to grant compensation to the victim.
It has been observed in Sarwan Singh v. State of Punjab that if the accused is in a position to pay the compensation to the injured, there should be no reason for the court to not direct such compensation.
The miserable conditions of a victim were highlighted in the State of Gujarat and another v. Hon’ble High Court of Gujarat. The state was directed to enact a legislation to mandate the payment of compensation to the victim.
The theory of compensation still holds relevance in the present times. The United Nation’s Magna Carta of rights of victims known as “Basic Principles of Justice for Victims of Crime and Abuse of Power” recommends the government to review their practices, regulations and laws to harmonize it with the concept of restitution in addition to other criminal sanctions. A similar duty towards victims is also stated under Article 2 of the European Convention on the Compensation of Victims of Violent Crimes.
The theory of compensation shifts attention from the criminal and the crime to the victim. Between the criminal and the crime, the person who suffers a loss is the victim. The loss caused is due to the act of the criminal. It is, therefore, justified that the victim is compensated.
The objective of the Preventive Theory of punishment is to prevent the wrongdoer from repeating the crime. The theory states a long term of imprisonment or disabling the offender as channels to prevent the offender. Under the Indian Criminal Law, the rarest of rare doctrine is used as a guiding light in awarding death sentences. The preventive theory views a death sentence as a medium of prevention as the crime dies with the criminal. The rationale flowing behind this theory is that murderers are hung not merely for the installation of fear in the hearts of others like them but for eliminating them from the world.
This theory was in vogue during the Mughal rule in India as the state was more concerned with the crime than the criminal
Every society desires to provide security of life and property to its citizens. Crime acts as an antithesis to this goal. The preventive theory serves a social purpose by preventing the occurrence of the crime. Unlike other theories of punishment, it strikes at the very root of the crime like a highly skilled doctor who recognizes the root cause of the problem and seeks to eradicate it.
The expiatory theory builds its premise on the virtue of forgiveness. It states that if the offender regrets for his actions, the regret or expiation suffices the purpose of punishment. Hegel and Kohler are the supporters of this theory.
The theory is a theory of moral virtues. It places reliance on the genuineness of regret expressed by the wrong-doer.
Reformatory theory of Punishment
The Italian school of Lombroso and the French writer La Cassague deserve credit for the origin of the Reformative Theory of Punishment. The starting point of the reformation theory is that a criminal can be reformed. It implies that prison should serve as a reformation centre. Punishment should serve the purpose of reforming the prisoner and remoulding his character.
This theory emerged as a reaction to the worsening conditions of the prisons and the degenerative effect it can have on the minds of the prisoners. The theory stands on the legs of morality and asserts that if a criminal is taught the difference between good and evil, right and wrong,it is expected of him to discard his old ways and to turn into a new leaf. It believes in using religious and moral exhortation as channels of reformation.
The theory is the most relevant theory in the present times. India has adopted the English Borstal Law, the Probation of Offenders Act,1958 to give effect to the theory. With the passage of time, the object of punishment has also gone through a massive change. It no longer has infliction of pain as it’s concern but has shifted its outlook to the reformation of the criminal.
The reformative theory believes in the importance of human resources. It is only in a utopian society that laws are not violated and rules are not flouted and hence, no crime is not committed. If for every crime that a criminal commits, he is put to death every nation would be left with a handful of people.
The reformative theory provides a second chance to the offender. By the introduction of religion and morals, an individual is given an opportunity to reshape his character.
The theory diverts its attention from the crime to the dominant. It is a known fact that no individual is born a criminal willingly becomes a criminal. There are factors like economic conditions, societal pressure, family background, education as motivating factors. The Reformative theory seeks to explore the criminal instead of the crime. It seeks to identify the reason behind a criminal mind and then seeks to eradicate it.
It can not be said with accuracy that a death sentence has always persuaded society to mend its ways. Hence, it is justified that the theory seeks to reform the wrongdoer instead of terminating his life.
Each theory of punishment is guided by its own logic and reasoning. While crime remains constant across all periods of time, a theory must be understood as a product of its time. Every theory of punishment has its pros and cons. It is the responsibility of the society to extract the best part of each theory and to make the success of criminal law a reality.
Jeremy Bentham, The theory of Legislation 209(N.M. Tripathi Private Ltd., Bombay,1995).
S.G. Goudappanavar, “Critical Analysis of Theories of Punishment” Issn 2321-4171.
Prof. Nomita Aggarwal, Jurisprudence(Legal Theory) 81(Central Law Publications, 107, Darbhanga Castle, Allahabad,10th edn, 2016).
Vyas, India through the Ages 104 (1st edn).
 J.G. Murphy, Retribution, Justice and Therapy; Essays in Philosophy of Law 83-84 (Holland: D Reidel Pub, Co,1979).
(1978) 3 SCC 799.
(1998) 7 SCC 392.
UN General Assembly Resolution no. 40/34 of 1985.
Sriram Sharma, Moghul Government and Administration 222 (1st Edn).
BY ANINDITA DEB | NATIONAL LAW UNIVERSITY AND JUDICIAL ACADEMY, ASSAM