History of punishment
Humans have always seen retaliation as an acceptable form of punishment. Often, the penalty did not fit the crime and was overly severe, resulting in the offender assuming a new position as the victim and likely pursuing their own retaliation. People eventually came to the realization that having families continuously plotting retribution against one another was not a good way to live, leading to the establishment of laws and regulations governing crime and punishment. These new laws were created to make sure that the punishment fits the offence, even if the victim nonetheless frequently imposed the punishment as a form of retaliation.[1]
Punishment can be defined as suffering inflicted upon the offender by the court when he is adjudged guilty under the law. It is penalty for transgression of law. Punishment is described as “the redress that the commonwealth takes against an offending member.”[2] Westermarck describes punishment as “Such suffering as is inflicted upon the offender in a definite way by, or in the name of the society of which he is permanent or temporary member.”
The Indian judicial system has used punishment, or sanction in Austin’s wording, for a very long time. It existed when Indian law was not codified. The fundamental reason for the existence of punishment was to maintain social order.
Prior to ancient Hindu era, penal laws prevailed in the uncivilized era. It was categorised into three parts ‘an eye for an eye’, ‘a tooth for a tooth’, ‘a life for a life’. With the advancement of time, the injured agreed to compensation for wrong, which is based on archaic criminal law.
In ancient Hindu sources of law, we find the term ‘danda’ in Manu smriti. Manu believed that it protects an individual from doing wrong things and keeps a check on them. According to him, it was a secular power of punishment which the king possesses to prevent breach of law and to inflict punishment on the wrongdoers. ‘Prayshchit’ or penance is also one of the three principles laid down in the smritis which signifies the penal provision for commission of wrong.
Punishments prevalent in the ancient India lacked proportionality and were solely created to serve the purposes of retribution and deterrence. Capital punishment, or the death sentence, was employed for minor offences. Different ways of carrying out the death penalty, like stoning, the pillory, construction into a wall, placing under an elephant’s foot, etc., were created to provide the convict an extremely gruesome death. Corporeal punishment was another type of punishment. Mutilation, branding, flogging, and imprisonment are a few examples of corporeal punishment. Among these punishments, imprisonment gained the most popularity in India.[3]
In India, the way that punishment is administered has evolved over time. As the goal of penology and law-making has turned to reformation and deterrent, punishments are less severe, and the intensity of punishment is determined by the nature of the offence.
Theories of punishment
As per the definitions of punishment if infliction of pain or forfeiture for retribution is the only objective of giving punishment to the offender then very little is accomplished by it. The intended outcome of the punishment must be realized by the offender, who must then repent and atone for the offence.
The objectives for punishment are classified into five theories of punishment.
Deterrent theory of punishment
This theory’s major objective is to “deter” (or prevent) offenders from attempting new crimes or committing the same ones in the future. The sociological school of law can be connected to the deterrent theory. The sociological school links society and the law together. According to this theory, if someone violates the law and receives a severe punishment, this may lead to the individuals being aware of the severe punishments associated with crimes and, as a result, deterring them from committing crimes or other transgressions.
The concept of deterrence theory may be condensed to the work of philosophers like Jeremy Bentham (1748-1832), Cesare Beccaria (1738-1794), and Thomas Hobbes (1588-1678). According to Hobbes, individuals typically follow their self-interests, regardless of whether they injure others in the process. Because of this, the consequence is conflict and resistance. People agree to give up their egocentricity to avoid if everyone essentially does the same thing. This is referred to as a “Social Contract.” Cesare Beccaria asserts that for punishments to be effective as deterrents or to have a deterrent effect, the proportion of the crime and the punishments should be comparable. J. Bentham believed that swift, certain, and severe punishment will prevent crime since it is consistent with a hedonistic understanding of man.[4]
Four defendants in the Nirbhaya case[5] who were found guilty of gang rape received death sentences from the court. For anyone who would consider committing a crime like rape in the future, we might argue that this serves as a great example. So, in accordance with this view, rape offences should not occur after the Nirbhaya ruling. However, they continue to occur. Hence, a hardened criminal grows accustomed to the harsh penalty, and deterrence does not always help prevent in committing a crime. However, it is inefficacious on a regular criminal as crimes are frequently committed in a fit of euphoria. Therefore, we may state that the deterrent theory of punishment does not have a significant impact on society today.
Preventive theory of punishment
According to the preventive theory of punishment, the main objective of the punishment is to prevent the offender from committing the crime again. This idea hinders the wrongdoer’s physical ability to conduct the crime rather than focusing primarily on his desire. For example, the offender may be sentenced to death, imprisoned, or have his driver’s license suspended.
There are three ways the preventative form of punishment operates:
a) By creating a fear of punishment in the hearts of all potential wrongdoers.
b) By preventing the wrongdoer from committing another crime immediately.
c) By changing the perpetrator through a reformation and reeducation process, ensuring that he would not commit these crimes afterwards.[6]
This theory is supported impliedly by Krishna Iyer, V.R. in Nadella Venkata Krishna Rao vs State Of Andhra Pradesh[7] “The purpose and justification of a sentence of imprisonment or a similar measure derivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so-far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life.”
The deterrent theory and the preventive theory of punishment have fundamental differences in that the former tries to warn society in its entirety that crime does not pay while the latter attempts to prevent the offender from harming others.
Reformative theory of punishment
According to the reformative theory, a crime is committed because of a conflict between the criminal’s character and purpose. According to this theory, punishment can be curative or serve as a medication as crime is like an illness and views punishment as a means of reforming the criminal.
Supporters of this theory or the reformers believe in preventing crime by giving criminals the training and care they need to break their criminal inclinations, as well as the opportunity to use their skills to become contributing members of society. They believe that punishment, no matter how severe, should never be degrading. The reformers contend that prisons must be changed into nice homes if offenders are to be put there to become law-abiding citizens. This reasoning, however, is restricted in its applicability, and it must be noted that in a country like India, where millions live below the poverty line, it may even promote the commission of crimes.
According to the reformative theory, imprisonment and probation are the only tools available for a strictly reformative system, as opposed to the deterrent approach, which would impose punishments such as imprisonment, fines, or even flogging and death sentence.
In Rakesh Kaushik v. Superintendent, Central Jail[8], J. Krishna Iyer observed that, “The fundamental fact of prison reforms comes from our constitutional recognition that every prisoner is a person and personhood holds the human potential which, if unfolded, makes a robber a Valmiki and a sinner a saint.”
Retributive theory of punishment
Retribution simply indicates that the offender pays for his crime; because a victim wants to avenge himself, so the State feels it necessary to inflict some pain or harm on the offender to prevent private vengeance. It is also known as the theory of vengeance and is based on the doctrine of Lex talionis which means ‘an eye for an eye’.
Other doctrines related to this theory are doctrine of societal personification and doctrine of correctional vengeance. Doctrine of societal personification states that when a horrible crime of immense magnitude is committed, society takes the shape of a natural person and acts collectively to obtain justice. For example, consider the nationwide demonstrations for the Delhi gang rape case, the Hathras rape case. Doctrine of correctional vengeance states that when society, to get justice, insists that the responsible authorities impose vindictive punishments (as painful as the initial crime) to create deterrence.
In Sri Ashim Dutta Alias Nilu vs State of West Bengal[9], it was noted that both deterrent and retributive punishment strive to stop crimes from being committed again by others by imposing adequate punishment for a specific offence. However, culture and communities are developing rapidly. Science and technology are advancing. Literate people and subject matter specialists in various fields of knowledge began to think differently. The old proverbs “eye for an eye” and “tooth for a tooth” are no longer thought to be the best way to deal with offenders. Such a philosophy could keep the jungle in control, but it cannot guarantee the rule of law.
Compensatory theory of punishment
This theory holds that the aim of punishment must include compensating the victim of the crime as well as serving to deter future offences. According to this theory, criminality has a large reservoir that would be dried out if the offender were forced to restore the illegally obtained gains from their crime.
Economic motivations may not always be the motivating force behind crimes committed against the state, the court system, religion, marriage, or even individuals. Other complex motives could be at play. In some situations, the principle of compensation might not be practical or useful. For example, despite the presence of incentives the offender’s economic situation may be such that restitution is not accessible. As a result, this theory can only play a minor part in the formulation of a penal code. In DK Basu V. State of West Bengal[10], the Supreme Court ruled that a victim who is subject to custody rights has a claim to compensation since the State official violated the victim’s right to life under Article 21 of the Constitution.
Conclusion
We may infer from the analysis of various theories that the present Indian methodology of social control has transitioned from retribution to reformation. As rightly said, “reformation and not retribution is the sentencing lodestar.”[11]
Dr. Jacob George v. State of Kerala[12], the Supreme Court ruled in this case that the goal of punishment should be deterrent, reformative, preventative, retributive, and compensatory. One theory over the other is not a good punishment strategy. Each theory of punishment should be employed separately or in combination depending on the nature of the case. Criminals are a part of society, and it is society’s responsibility to reform and correct them so that they can be contributing members of society. Realizing that society and the law both have a strong interest in preventing crime, neither can be disregarded.
Author – Dimpal Khotele
BBALLB, Amity University Chhattisgarh
[1] https://www.volocars.com/blog/history-of-crime-and-punishment
[2] “Criminal behaviour” by Walier Reckless
[3] https://www.ijlmh.com/paper/evolution-of-the-process-of-punishment-in-india/
[4] https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/?amp=1#
[5] Mukesh v. State (NCT of Delhi) [(2017) 6 SCC 1]
[6] https://www.legalserviceindia.com/legal/article-1808-theories-of-punishment.html
[7] 1978 SCC (1) 208
[8] 1981 AIR 1767
[9] (1998) 2 CALLT 338 HC
[10] AIR 1997 SC 610
[11] Saradhakar Sahu v. State of Orissa, 1985 Cr LJ 1591
[12] 1994 SCC (3) 430