© 2019 JETIR April 2019, Volume 6, Issue 4 www.jetir.

org (ISSN-2349-5162)

Theories of Punishment
Prashna Samadar, Department of Law,
Galgotias University, Yamuna Expressway
Greater Noida, Uttar Pradesh
Email ID: [email protected]

Abstract: A term that is inherent in criminal justice is punishment. It is only because of the term punishment that 'crimes' are
classified as certain acts. We have seen, down the course of society's past, that without retribution, it would often have been difficult
to tame the public's barbaric and primitive impulses. It was the tool called 'punishment' that the rulers used against their subjects
to sustain a fear in the public's minds about their rulers' capacities and powers. Punishments have also often been given to someone
else as an insult. The most common discipline we are all familiar with, however, is the scolding or mild beating we get from our
parents. In that scenario, in the case of serious offences, what are the hypotheses of punishment? How have they developed? What
are the pros and cons of the different methods of punishing people? Through this article, we will try to address all such questions
and explain how much the different theories of punishment in the present era are relevant.
Keywords: Criminal., Fear, Justice, Primitive, Punishment and Theories.

INTRODUCTION
There is not enough mere denunciation of crime; it must be driven to its logical end that by punishing the
criminals, crime does not pay. Punishment means, "It is the remedy taken by the commonwealth against an
offending member." Punishment is a form of social censorship and does not actually require physical pain. In
his General Theory of Law and State, H Kelson defined "punishment is socially organized consisting of
deprivation of possession-life, liberty, or property." According to Jeremy Bentham, punishment is evil in the
form of fear-operating remedy [1]. Johan Finnish has said that a person's delinquent conduct needs to be taught
not with melody but with an iron fist. "Almost every member of society needs to be taught what the law's
obligation, the traditional path to follow the common good, is actually: and {relatively!} Vivid drama of the
arrest, prosecution, and punishment of those departing from the traditional way specified.
Different motives justify punishment, but as punishments have one major purpose, criminal law is to eliminate
self-help and private sanctions. When society recognizes that sanctions are required, they must be enforced
collectively, formally, legally and publicly. Various theories of punishment have been proposed by different
scholars, but these can be generally categorized as non-utilitarian and utilitarian. The emphasis and aims of these
theories are what distinguishes them: utilitarian theories are forward-looking; non-utilitarian theories are
backward-looking, interested in past actions and mental states; and mixed theories are both forward and
backward-looking.
The utilitarian point is that punishment is awarded to mitigate crimes and used as a means to an end. George
Hegel and Immanuel Kant opposed and dismissed the philosophy of utility and proposed the retributive theory
of punishment in comparison, which is non-utilitarian on the basis that punishment does not mean an end but an
end in itself. Even 20th century scholars are holding this war tug between George Hegel and Immanuel Kant on
one side and Jeremy Bentham on the other side [2]. Professor Glanville Williams of Cambridge University, a
professor of criminal law, applauds the utilitarian view that punishment is either preventive or deterrent.9 Both
schools accept that punishment is necessary, but disagree with its purpose. In addition, the usefulness doctrine
classifies punishment as preventive (restraint), satisfactory (compensatory), reformatory (therapeutic or
corrective), and deterrence.
DIFFERENT THEORIES OF PUNISHMENT
Deterrent Theory
The retributive theory assumes that only for the sake of it is the punishment given. It also implies that, without
taking into account any consequences, bad should be restored to evil. This theory can be further divided into two
theories. Relevant deterrence and general deterrence are them. In specific deterrence, punishment is structured
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such that the offenders can be trained. Thus, the criminals who are subject to this principle may be reformed. It
is also held that criminals are reformed through punishment. By generating a doubt that the penalty will be
replicated, this is done. While the aim of general deterrence is to prevent potential crime. So, by having an
instance of each defendant, this is done. It scares the people, therefore, not to do what the defendant did.[3]
Incapacitation Theory
The term "incapacitation" means 'by punishing to deter the crime, such that the future generation fears
committing the criminal act.' One of the primary aims of this principle is to eliminate from society the sufficiently
dangerous individuals [4].
Retributive Theory
The most ancient reason for punishment is vengeance. This hypothesis argues that a person deserves punishment
because he has committed a wrongful act. This principle also assumes that unless the person has violated the
law, no person can be arrested.
Preventive Theory
This theory has used the constraint that if the illegal act is repeated, a perpetrator is guilty of death, exile or
incarceration. The theory derives its meaning from the idea that it is important to defend society from criminals.
Thus, for solidarity and protection, the penalty here is. Modern criminologists have seen the preventive theory
from a different viewpoint. First, they realized that it was important to eliminate social and economic powers
from society. Therefore, one must pay attention to people who display anti-social behavior. This is because of
handicaps in psychology and biology [5].
Reformative Theory
Examples of classical and non-classical theories are deterrence and retributive. The reformatory theory was born
from the constructive theory that positive thought is the focal point of crime. According to this theory, therefore,
reformation by the victim must be the purpose of punishment. So, this is technically not a penalty, but rather a
rehabilitative mechanism. Thus, this method aims as much as possible to make a criminal a decent person. In
addition, it makes a person a meaningful citizen and a straight man upright [6].
Compensatory Theory
Compensation is the true essence of revenge, change and a critical contribution to deterrence. In a crime, victims
should be compensated predominantly for two reasons, namely—
 A offender who has hurt an individual (or group of persons) or property must be compensated for the
damage caused to the victim and compensated for the loss caused to the victim.
 The State, which has failed to provide its people with protection, must obtain compensation for the loss
caused.
Relevant Judicial Pronouncement
(i) Mukesh and Anrs. Vs NCT Delhi (Nirbhaya Case) [7] – While talking about retributive justice in India,
this case is indeed the first and foremost case to be listed. In this judgment, four out of six felons convicted
in the extremely heinous Delhi gang rape case were sentenced to death by the Supreme Court, to the joy
of humanity, since they had committed an extremely gruesome and morally unthinkable crime.
(ii) Dr. Jacob George v state of Kerala[8]: In this case, the Supreme Court held that deterrence, reformative,
preventive, retributive & compensatory should be the object of punishment. One alternative hypothesis
over the other is not a sound penalty strategy. Each principle of punishment, depending on the merit of
the event, should be used separately or integrated. "Every saint has a past & every sinner has a fortune" is
also mentioned. Criminals are very much a part of society, but society is therefore responsible for
reforming and correcting them and making them sober members of society. Since crime prevention is the
key priority of culture and policy, both of which should not be overlooked.
(iii) In State of Gujarat and Anr. v. Hon’ble High Court of Gujarat[9], Justice Thomas had held that
"Reformative and reparative theories deserve serious consideration where the victim(s) of crime or
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members of his family should be compensated by the wages earned by the criminal in prison." The Court
proposed that a comprehensive statute should be enforced by the specific State in relation to his
compensation owed to the victim of a crime.
(iv) Sri Ashim Dutta Alias Nilu vs State of West Bengal [10]– In this case, it was observed that the purpose
of both deterrence and retributive penalties was to avoid the recurrence of offences by those who passed
an exemplary penalty for a specific offence. Yet culture and society are increasingly advancing. Science
and technology are advancing here. In a different way, literate people and specialists in various branches
of expertise began to think. The right solution to criminals is no longer considered to be an eye for an eye
and a tooth for a tooth. The Jungle rule may be perpetuated by this theory, but the rule of law may not be
guaranteed.
CONCLUSION
Each punishment theory has its own merits and demerits. Therefore, if it depended on any one principle of
punishment, criminal justice would not be safe. IPC Section 53 prescribes various forms of punishment, namely,
death, life imprisonment, rigorous or simple imprisonment, property forfeiture, and fine, but does not mention
the purpose of punishment that depends on the theory of punishment. The Indian Penal Code provides for
maximum punishment, without exceptions, and leaves the imposition of adequate punishment in the hands of
the judiciary, which makes the IPC versatile. In the Indian legal system, capital punishment, which is part of the
conventional deterrence principle, is maintained and continued.
Thus, we have seen in depth the various theories of punishment. We knew what the guiding principles behind
them are, how they vary from each other and some of the same very relevant case laws. Nonetheless, we need to
realize very clearly that punishment is something that should be handled very carefully. As the common saying
goes,' Let go of a hundred guilty, rather than punishing an innocent,' we need to realize that inflicting a penalty
on someone dramatically affects his emotional, physical and social status. It is having a very serious effect on
him and his being. Thus, absolute carefulness needs to be executed when conducting criminal justice, or else the
very ideals of justice will go for a toss.
REFERENCES
[1] M. D. Dubber, T. Hörnle, and E. Melissaris, “Theories of Crime and Punishment,” in The Oxford
Handbook of Criminal Law, 2015.
[2] F. Cutler, “Jeremy Bentham and the public opinion tribunal,” Public Opin. Q., 1999, doi: 10.1086/297723.
[3] D. S. Nagin, “Deterrence: A review of the evidence by a criminologist for economists,” Annual Review
of Economics. 2013, doi: 10.1146/annurev-economics-072412-131310.
[4] A. M. Polinsky and S. Shavell, “Chapter 6 The Theory of Public Enforcement of Law,” Handbook of Law
and Economics. 2007, doi: 10.1016/S1574-0730(07)01006-7.
[5] M. Davis, “Punishment theory’s golden half century: A survey of developments from (about) 1957 to
2007,” J. Ethics, 2009, doi: 10.1007/s10892-008-9040-0.
[6] R. C. Fuller, “Sociological theory and social problems,” Soc. Forces, 1937, doi: 10.2307/2571420.
[7] SCC, Nirbhaya Case, vol. 6. 2017, p. 1.
[8] SCC, Dr Jacob George, vol. 3. 1994, p. 430.
[9] J. K.T. Thomas, State Of Gujarat And Anr vs Hon’Ble High Court Of GujaratNo Title. 1998.
[10] J. D.P. Sarkar-II, “Sri Ashim Dutta Alias Nilu,” CALLT, vol. 2, p. 338, 1998.

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