THEORIES OF PUNISHMENT

Submitted By
DEVENDRA DHRUW
Roll No. 59
BA LLB (HONS)
Semester VII Batch XIII

Submitted To

Mr. Sandeep Suman

(Faculty of Criminology and Penology)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR CHHATTISGARH

Submitted On 26thSeptember, 2016

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CERTIFICATE OF DECLARATION

This is to certify that this project on the topic ‘THEORIES OF PUNISHMENT’, is an original
work done by me under the guidance of Mr. Sandeep Suman.

Devendra Dhruw

Semester – VII, Section -C

Roll no. - 59

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INDEX
1. ACKNOWLEDGEMENT …4
2. AIMS AND OBJECTIVES OF PUNISHMENT …5
3. INTRODUCTION …7
4. THEORIES OF PUNISHMENT …8
5. DETERRENT THEORY …8
6. RETRIBUTIVE THEORY …10
7. PREVENTIVE THEORY …11
8. REFORMATIVE THEORY …11
9. PUNISHMENT UNDER CODE …13
10. NEW FORMS OF PUNISHMENT …16
11. DEATH PENALTY UNDER PENAL CODE …18
12. CONCLUSION …20
13. BIBLIOGRAPHY …21

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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”.

• Mr. Sandeep Suman Sir 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 Library who were instrumental
and suggestive in our finding the necessary books without wasting much time.

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AIMS AND OBJECTIVES 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’:

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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“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 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.

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INTRODUCTION

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.

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.

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

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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.

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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 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

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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 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

(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.

4
IPC (Amendment) Bill, 1978

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(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, 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.

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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.

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.

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.

6
AIR 1987 SC 1525

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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
paper.

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).

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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 behavior 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 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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