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THEORIES OF PUNISHMENT
Submitted to:
Submitted by:
Ms.Neda
Singh
Soumya
Vth Semester
Faculty of Law
JAMIA MILLIA
ISLAMIA
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INDEX
1. ACKNOWLEDGEMENT
3
2. AIMS AND OBJECTIVES OF PUNISHMENT 4
3. BACKGROUND
6
4. THEORIES OF PUNISHMENT
8
5. DETERRENT THEORY
9
6. RETRIBUTIVE THEORY
10
7. PREVENTIVE THEORY
11
8. REFORMATIVE THEORY
12
9. PUNISHMENT UNDER CODE
14
10.
NEW FORMS OF PUNISHMENT
18
11.
DEATH PENALTY UNDER PENAL CODE
21
12.
CONCLUSION
23
13.
BIBLIOGRAPHY
24
ACKNOWLEDGEMENT
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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.
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
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 persons 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
1 C.M.V Clarkson understanding criminal law, William Collins, 1987, pp. 166-168
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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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
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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
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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
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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.
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
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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
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
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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 alltogether. 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
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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Death,
Imprisonment for life,
Imprisonment, rigorous with hard labour,
Forfeiture of property;
v.
Fine
(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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(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
offender is liable is unlimited, but shall not be excessive. Sentence for nonpayment 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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Externment,
Compensation,
Public Censure,
Community service,
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.
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
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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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.
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 accuseds 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
6 AIR 1987 SC 1525
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iv.
v.
302).
Abetment of suicide of a minor, or insane, or intoxicated person (section
vi.
305).
Attempt to murder by a person under sentence of imprisonment for life, if
hurt is caused (section 307).
Kidnapping for ransom, etc. (section 364A).
Dacoity accompanied with murder (section 369).
vii.
viii.
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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
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Bibliography
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