CRIMINOLOGY

“ THEORIES OF PUNISHMENT”

Submitted to: Submitted by:

DR.CA RASHID EHTAMAMUL HAQUE
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

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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”.

• DR. CA RASHID for the clarity he brings into teaching thus enabling us to have a
better understanding of his subject. I also feel obliged to thank him 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 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 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”

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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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 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

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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.

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 that are like-minded with him.

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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 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.

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 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 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

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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 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

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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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 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.

(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,

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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 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.

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.

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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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 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.

6
AIR 1987 SC 1525
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,
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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