Punishment
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This article has been written by Dhruv Rajpoot.

Punishment

It is an expression that is intrinsic to criminal justice. It is only for the reason that punishment certain deeds are categorized as crimes. It is the tool used by monarchs and sovereigns’ leaders against their citizens or followers in order to maintain fear in the minds of the public regarding the positions and powers of their monarchs and sovereigns` leaders.

However, the most common punishment which most everyone is familiar with is the scolding or mild beating from our parents. 

The Various Theories of Punishment are as follows:

Retributive theory 

The Retributive Theory of Punishment is also known as the Theory of Vengeance. It is the most elementary theory and most people in the society would perceive it as considerate and yet it also classifies as inconsiderate theory of inflicting a penal sentence over a perpetrator of a crime. It is based on the doctrine of Lex-talionis meaning an eye for an eye. Nevertheless, to comprehend that having a retributive approach will reduce the society into a primitive system of justice. The concept of retributive justice can be best identified as the form of justice which follows these three principles:

  • Those who commit wrongful deeds or acts, paradigmatically serious crimes, morally ought to have a proportionate punishment;
  • That morally good acts but good deeds without locus to any other users that might arise, if some legitimate punisher gives them the deserved punishment; 
  • That it is not permissible morally to punish an innocent intentionally or to inflict excessive punishments on wrongdoers.

The Retributive Theory has two very important doctrines:

Societal Personification

This doctrine signifies that in society, every time an atrocious crime of an extreme nature is perpetrated, that crime undertakes the form of a natural being and society behaves in a united manner to make sure justice is done.

Correctional Vengeance

This doctrine refers to when in a fit to get justice the society starts to pressures the authorities or the system to impose vengeful punishments upon the accused of creating a restrictive measure for future generations.

Retributive punishments may not always be vengeful in their nature but morally always vengeful. Some illustrations are also there in the Hindu scriptures such as the Durga Saptashati, Ramayana and Mahabharata are primary illustrations of Retributive Theories. 

For instance, In the Ramayana, the retribution for Lakshmana cutting the nose of Raavan’s sister, he kidnapped Sita. Therefore, in order to liberate the Site, Ram went on to eventually kill Raavan. But, the major variance between the diligence of the retributive punishment amongst the two was that Raavan did not even offer Ram an opportunity to ask forgiveness for his younger brother’s act, but Ram offered many opportunities to Raavan to ask forgiveness for his act.

As such the Mahabharata is a moral specimen of how retributive punishment should be perpetrated. The Pandavas never started-off the war right away and Shri Krishna was sent several times as their messenger of peace to the Kauravas. In fact, Shrimad Bhagavad Geeta also talks about the time when the retribution should be exercised and when Arjun was too scared to go against his relatives and was about to leave the battlefield, Shri Krishna said when all other paths close down, only then war shall be as last resort. Therefore, if a person declines to fight, then that person is the cause of a glaring injustice upon the general public-at-large.

Deterrent theory

The expression “Deter” insinuates to refrain from performing any wrongful deed or acts. The object of this theory is to prevent the criminals from attempting any crime or repeating the same crime in future. So, to set or establish an example for the individuals or the whole society by punishing the criminal with the objective of creating a fear of punishment, therefore, it may result in the people of the society will be or may be aware of the severe punishments and because of this fear of punishment may stop from committing any kind of crime or wrongful act. 

For instance, an individual has punished a wrongful act done by him and also in order to ensure the same wrongful act may not be committed again by him or any other individual.

The sociological school of Jurisprudence creates a bond and links society and law to each other. Therefore, specifying the law to be a social occurrence having a direct and/or indirect bond to society. The concept can be simplified through the research of social contract thinkers, who lay the foundation of modern deterrence in criminology such as:

Thomas Hobbes (1588-1678), each individual mostly pursues his or her self-interests such as material gain, personal safety, and social reputation and making enemies in pursuit of self-interest, not considering if they damage others in the process, consequences in conflict with the Government. To prevent this conflict, people agree to give up their egocentricity if approximately everyone does the same thing termed as “Social Contract”. Therefore people who violate the social contract should be punished. Only deterrence can maintain this social contract between the State and the people.

Cesare Beccaria (1738-1794), the crime committed and punishment given should be in proportionality to that crime to serve it as deterrence or have a deterring value. 

Jeremy Bentham (1748-1832), known as the founder of this theory and stating that a hedonistic conception of man and that man as such, would be deterred from crime if punishment were applied swiftly, certainly, and severely.

Thomas Hobbes, Cesare Beccaria, and J. Bentham’s theory of deterrence contains the 3 most important elements. They are as follows:

Severity

It indicates the degree of punishment. To prevent crime, law shall penalise and punishment should be encouraged, to make citizens follow the law and at the same excessively severe punishments must be avoided. 

Certainty 

It indicates making sure that punishment must happen whenever a criminal act is committed. 

Celerity

The punishment shall be instantaneous and prompt in order to command it as a deterrent to a crime. The sooner the punishment is conferred, the more effective it will be to deter crime.

Austin’s theory, in his imperative theory, declared three important things, Sovereign, Command, and Sanction. Resulting in people following the law will fear being punished. In the other words, Law can be termed as the command or an order of the Sovereign or the ruler.

An illustration: When people are riding a bike, they wear a helmet as per rules. Now, we can assume that some people wear helmets genuinely to save themselves from road accidents but some people wear helmets because of escaping fines or in fear of cancellation of their license. Therefore, they know that if they drive rashly or disobey the rules, they will be punished by way of a fine or their driving license will be canceled. As such the purpose of the deterrent theory is successfully applied.

Most penal systems made use of deterrent theory as the basis of sentencing mechanism till early 19th century but this theory in today’s context, very recent example of why deterrent theory is not successful in the Nirbhaya case, the Court gave death sentence to the four convicts for committing gang rape and setting a great example for future offenders for committing a crime like rape in future even though day-by-day, rape cases are increasing in our society.

Preventive theory

The preventive theory of punishment pursues checks and stops prospective crimes from even happening by disabling criminals, meaning transforming the criminal, either permanently or temporarily.

Philosophical utilitarians such as Bentham, Mill, and Austin supported the preventive theory of punishment due to its humanizing nature and affirms that it serves as an effective deterrent. The ambition of punishment is to check and stop the crimes. The crimes can be prevented when the criminal and his notorious activities are checked and are disabled, which can be temporary such as confining inside the prison is a limited form of disablement, and when it is an unlimited form that is imprisonment for life or death sentence, which is permanent. 

It advocates that imprisonment is the best approach of crime deterrence, as it seeks out to eradicate criminals, lawbreakers and wrongdoers from society, thus incapacitating them from repetition of crime. Capital punishment is also built on this theory.

Preventive punishment follows three most important techniques: 

  • By creating the fear of punishment.
  • By disabling the criminals from committing any other crime either permanently or temporarily.
  • By reformation of criminals to a sober resident of the society. 

Incapacitation theory 

An individual in society normally has freedoms and liberties, therefore the restriction of those freedoms and liberties would signify it as incapacitation. In general, “incapacitation” means ‘to prevent a crime by punishment as an example for the future generation and creating fear of committing a crime.’ Incapacitation can be achieved by either eliminating the criminal either temporarily, or permanently from the society, or by some other method, which restricts such criminals by the physical inability for example incarceration of the offenders, which is one of the most common ways of incapacitation, in severe cases, capital punishments. The purpose of incapacitation is the prevention of crime in the future.

The theory of incapacitation was coined in Britain, throughout the 18th and 19th centuries, the criminals were often shipped to places like America and Australia. Subsequently, in the 21st century, theory altered the criminals but still, this theory remained as the primary mode of punishment in most of the contemporary penal mode of punishment. Therefore, in the theory of incapacitation typical form of punishment is imprisonment, considered as the best form of incapacitation.

The theory of incapacitation`s primary purpose is to eradicate criminals from society. The hazard that is realized to be posed by the criminals at the inception of crime, if a country considers a crime in one way, another country will treat the same in a different way. For example, in the U.S.A. incarceration of criminals is done at a much higher rate, than in other countries. 

It has been observed that contrasting to the other theories of punishments like deterrence, rehabilitation, and restitution, the theory of incapacitation merely relocates criminals in the society, ensuring declination of crime rate in the society and impacting the future generation. 

The theory of incapacitation is only applicable to people who are convicted and imprisoned either for a term or for life. It also includes probation and parole.

The University of Chicago conducted a study to prove that the crime rates prevented up to 20 percent. It has been also observed that even if other theories are applied in a fairly stringent manner like imprisonment of criminals for at least 5 years, it can increase the population of the prison if application of the rest of the theories are restrained. 

This strategy will be contingent on the degree of the crime committed such as If a only few number of criminals commit a disproportionately high rate of crime, aiming limited resources of prison on these criminals, shall result in an improved in controlled crime rate minus the unreasonable amplification of population of prison. 

Compensatory theory

The compensatory theory states that criminals are penalized through the law of crimes with all the resources and benevolence of Courts and other Governmental and non-Governmental organizations to seek reformation and rehabilitation of that criminal. It is necessary that the criminals shall get an appropriate judgment for crimes committed by them. The victim and their family members should not be caused any harassment and in fact, they should be compensated, mainly in two ways: 

  1. By a criminal who has inflicted an injury against the person (or group of persons), or the property must be compensated for the loss caused to the victim.
  2. The State that has failed to provide safety towards its citizens, must receive compensation for the loss caused.

Compensation can be also called the bona fide core of the deterrent, reformative, and retribution.

Reformative theory   

The Reformative Theory postulates that through the strategy for individualization and subjecting of the criminals to change through discipline. This theory hinges on the humanistic directives, notwithstanding whether wrongdoing perpetrated by a criminal, shall remain to be a human being. Therefore, while remaining in detainment or imprisonment there should be efforts made to change that criminal into a decent person to be able to live in the society. 

For example, a criminal has shown bad behavior under circumstances that might never materialize another time. Hence, during the time of imprisonment efforts should be made to transform the criminals such as taught craftsmanship or industrial works during the time of imprisonment. The goal of law should be to achieve the moral discrepancy such as the criminals after conveyance from imprisonment may have an alternative to start life again.

The history of this theory, beginning from the primitive type of pre-eminent force to the present, changed throughout the long-term and having different types of Governments and human beings have improved steadily. During old times, the notion of discipline was retributive, where the criminals were conferred discipline of a type that was uncouth in nature. Afterwards, the significance of universal liberties magnified and cleared the path for Reformatory and Rehabilitative hypotheses to replace the Retributive approach. 

The intention of the law is always to be dynamic in nature and never to be static. The theory of Reformatory and Rehabilitative punishment though being obeyed in India is with the goal to change the criminals but isn’t that compelling. 

The reason for the Reformatory and Rehabilitative hypothesis is to make the criminal languish over his bad behaviour and the motivation for such discipline is around the mental outlet of the criminal in question or family of the criminal such as parole and probation, which have been incorporated in current procedures of improving the criminals all around the globe. Reformatory and Rehabilitative hypotheses legitimize imprisonment but not to separate and kill criminals from society. 

The reformative techniques have been valuable in the event of adolescent misconduct, first-time criminals, and female criminals. Nowadays the reformative hypothesis is effectively utilized for the treatment of mentally challenged criminals and also focuses on the improvement of framework and agencies in prisons. 

This theory requires enormous cost which poor nation cannot accept and disregards criminals, who have committed a crime but are not inside the ambit of the law or are survivors of crimes. Therefore, individuals like bad-to-the-bone, proficient and profound criminals can’t be transformed as the transformation works out only on those, who can be improved. Hence, it is not out of line to say the idea of Reformatory and Rehabilitative as a disappointment but there is still hope for it to work as on many occasions where criminals have learnt skills in jail and transformed them into decent human beings. Many individuals having a high regard for law are unable to understand the reasons behind the theory and for giving better agencies inside the jail.

Utilitarian theory

The utilitarian philosophy tries to rebuff guilty parties to debilitate, or “hinder,” for future bad behaviour, and as such the laws ought to be utilized to amplify the joy of society. This theory is consequentialist in nature as it perceives that discipline has ramifications for both the wrongdoer and society. A delineation of consequentialism in discipline is the arrival of a jail detainee experiencing an incapacitating sickness or in many cases approaching death. 

The utilitarian laws work on discouragement implying that the punishment should to be given to keep others from committing crimes and also specify punishment for criminals, should be an example to the society that is an obvious deterrence implying the punishment ought to keep individuals from committing crimes. Capital punishment can also have the application of utilitarian theory as it produces both positive and negative results. There have been many debates encompassing the issue and as such rivals of capital punishment pronounce that it is savage and harsh thus the administration ought to get rid of it. The activities that enhance the satisfaction of the greater section of the public, should be sought and those prevented should be evaded. 

The principal advantage of capital punishment is that it undertakes a huge deterrence. The most significant objective of the criminal equity framework is to debilitate individuals from taking part in wrongdoing, that capital punishment is the most fundamental type of punishment and the most horrible convicted criminal in the public eye it should be utilized. The most extreme punishment is capital punishment and probably going to dissuade individuals who are otherwise not frightened by long imprisonment.  Capital punishment also offers another advantage to the general public in that it prompts the perpetual debilitation of the convicts.

A utilitarian view, that the prevention job is moral since it adds to the general satisfaction of the general public and criminals do not participate in wrongdoing, the general public feels more secure and harmony and security should be felt in their society. 

Case Laws, citing the application of various theories of punishment:

State vs. Ram Singh and anr, also known as the Nirbhaya Case: This case is indeed the first and foremost case while talking about retributive justice in India. In this Judgement, Court sentenced death penalty to four out of six accused involved in the extremely heinous, gruesome and morally unthinkable crime, much to the delight of the society. 

Anwar Ahmad vs. State of Uttar Pradesh and anr, in this case, the convicted person was sentenced an imprisonment term and by that time had already undergone imprisonment for six-month, before being officially convicted by the Court. The Court held that it would impose a very great loss upon the family of the convict that even though now been convicted and the requisite ‘blemish’ been caused, it was not necessary to sentence him again under the label of ‘retributive punishment’. 

Sri Ashim Dutta Alias Nilu vs State of West Bengal, it was viewed in this judgment that deterrent and retributive punishment equally ambitious towards preventing the repetitions of the crimes by the convict or by any other person if an exemplary punishment for a particular crime or wrongdoing is given, even though the civilization and societies have rapidly progressed and the professionals or literate people in various domains of knowledge started a different way of considering it. Therefore, the correct approach towards the criminals is no more contemplated such as an eye for an eye, or a tooth for a tooth. These principles cannot ensure the rule of law but can only perpetuate the law of the Jungle.

DK Basu v. State of West Bengal, in this case, the victim was kept under custody and therefore, the Apex Court held that a victim, has every right to get compensated under Article 21 of the Constitution as her Right to Life has been not honored by the officer of the State. 

The state of Gujarat vs. Hon’ble High Court of Gujarat, in this case, the Court recommended that compensation payable to victim of a crime and therefore a State should enact a comprehensive legislation to that effect. The Hon`ble Justice Thomas had observed that The Reformative and reparative theories should be given serious consideration and especially that the victim(s) or family members of the victim(s) of a crime should get compensated, and that compensation could come the convict`s wages that are earned during the time of imprisonment of the criminal. 

Surjit Singh v State of Punjab, in this case, one of the accused was a policeman and that policeman had come into the house of the deceased victim with the intention to commit rape. The policeman failed to commit rape as the sons of the deceased screamed for help. Therefore, accused was convicted under the Indian Penal Code for house-trespass under section 450 and stating contrary that the capital punishment is more of an impermanent form of disablement.

Dr. Jacob George v state of Kerala, in this case, the Supreme Court held that each theory of punishment should be used independently on the basis of merit of the case. Therefore, this would not be a sound policy of preferring one theory of punishment over the other theory of punishment as the aim of punishment should be deterrent, reformative, preventive, retributive & compensatory. 

Conclusion

In fact, punishments are classified into various types by various theorists and philosophers, in reality, every punishment is indeed retributive in nature. It is very fascinating to understand that the remedies are compensatory in nature for the damages claimed for environmental violations or under the law of Torts but at their cores, are retributive in nature. In the Nirbhaya case, suggesting that justice has finally been served to “India’s Daughter” even-though the decision came after seven years and it will help to secure the safety of women and prevent rape cases in the future but still a slew of rape cases continue unabated. 

Proving that the Death penalty does not act as a “deter” to rape cases. As an example, a recent gang-rape case happened at Hathras, Balrampur. So, there is no improvement through severe punishments also and on today’s generation, there is no major implication of Deterrent Theory of Punishment. 

The deterrent theory of punishment is utilitarian in nature and hopes to control the crime rate in society by making the potential criminals realize that it doesn’t pay to commit a crime. Hence, it acts as a strong deterrent and help in providing moral justice to the victim along with providing encouragement of trust within the society, towards the judiciary. 

Nevertheless, sometimes may become disproportionate with the seriousness of the crime. Society develops feelings of vengeance and destructive tendencies and the State may become autocratic in its functioning, using the punishment to torment people. 

Utilitarians comprehend that a crime-free society and that is near to impossible and therefore at the moment doesn’t exist, yet they still attempt to incur just as much punishment as is needed to forestall future violations. 

However, understanding the Theories of Punishments and their application is something that should be done with due care. 

Therefore, “Let go of a hundred guilty, rather punish an innocent”, the implications of punishment upon someone are huge and changes his mental, physical and social status as such can be seen from the recent case of Vishnu Tiwari, who suffered 20 years imprisonment during which he missed the funeral of his father and brother but was released free along with Rs. 600 as ultimately he was found to be innocent. 

The Supreme Court of India rightly said that “every saint has a past & every sinner has a fortune”. Thus, while administering criminal justice, utter carefulness has to be executed, or else the very principles of justice would be mere words and meant nothing.


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