Punishment

Date:
Punishment
 Punishment has no singular meaning, Approach towards criminal
will come in handy for grasping various meanings.
 Elmer Johnson’s : A criminal may be described as a monster or be
pictured as a hunter animal or as the helpless victim of Brutality.
 This is a reflection of the penology of different times.
 In the first instance, the criminal is considered bad and dangerous
and the object of the criminal system is to inflict pain through
punishment onto the offenders (Punitive Approach)
Punishment
 Second instance is suggesting that an offender is a victim of
circumstances and many other factors that are erupting from the
society itself. Such a person must be treated (therapeutic
approach).
 The third illustration focuses on conditions responsible for crime
causation and best highlights preventive approach.
 The different theories of Punishment cannot function in water tight
compartments. Therefore we often find a mixture of these theories
finding the best results.
History of Punishment
 In Primitive Society Kinsmen were collectively responsible for
injuries inflicted by their members on the member of any other
group, the latter group used to take blood feuds from the former.
 The punishment was imposed by the kin- group.
 Blood Feuds within the same group or tribe, the punishment was
given by the chiefs of the tribe, elders or kings in case the injuries
were grave to be taken against the whole community rather than
private injuries.
 For Murder and theft the responsibility was with the Kin- Group.
History of Punishment
 These punishments were imposed to by the kings, chief of the
tribes and elders so as to prevent feuds within the same tribe.
 To regularize the punishments, they started to adjudicate disputes
themselves and sometimes through a third party with which the
court developed in the modern sense.
 In most primitive societies punishment is not found so severe and
barbarous in the advance societies.
 The severe punishment symbolizes display of strength and
suppression of any threat to the governmental authority.
History of Punishment
 Branding, Mutilation, tearing apart, feeding to beasts, slow
starving, burning, exposing in pillories to the insult of the
passers- by, enslaving in galleys, crucification and pressing to
death were some form of Unpleasant punishment.
 The reasons for the punishment may differ with changing
conception of crime criminality and punishment.
 One reason which appears to be important from the vary
beginning is the revengeful nature attitude towards the
criminal.
Meaning & Purpose of Punishments
 According to oxford dictionary to punish means to impose a
penalty over someone for an offence.
 Any crime that I committed today is socially damaging.
 Punishment is a sanction imposed on the convict for the
infringement of the established rules and norms of the society.
 The object of punishment is to protect society from
mischievous and undesirable elements by deterrence,
prevention, retribution and reformation of potential offenders.
Object of Punishment as defied by Manu

 Punishment governs all mankind; Punishment alone

preserves them; punishment wakes while their guards are

asleep; the wise consider the punishment (danda) as

perfection of Justice
Theories of Punishment
 According to Taylor “ a herd of Wolves is quieter and
more at one than so many men, unless they all had one
reason in them, or having one power over them.”
 To set the men right so that they may live in a cohesive
and organized way, the society has to maintain certain
norms.
Theories of Punishment

 Deterrent Theory

 Preventive Theory

 Retributive Theory

 Reformative Theory

 Compensatory Theory
Deterrent Theory
 Deterrence means to discourage someone from doing something.
 The object of the punishment according to this theory is to deter
the offenders from repeating the same course of conduct so that the
person and property of others or the society at large may not be
harmed.
 There is a conflict of interest between the society and the
wrongdoer and the society.
 The punishment removes the conflicts of interest and the act of the
wrongdoer which is injurious to others, is made injurious to him
Deterrent Theory

 By getting the punishment the offender is afraid of with the pains

of the punishment.
 This not only deters the actual offenders but others from also
from adopting the same course of conduct.
 This theory runs on the assumption that infliction of pain keeps
most people away from certain prescribed behaviors.
 Salmond, considers deterrent aspects of criminal justice to be
most important for control of crime.
Deterrent Theory

 Example

 In Saudi Arabia where extreme punishments like

mutilation of limbs are granted for offenses like theft,

crime is almost unknown.

Preventive Theory
 The propounders of this theory hold that the object of
punishment is to prevent the offences.
 The offence can be prevented when the offender and his
notorious activities are checked.
 What would be the form of the disablement or how the
offender can be disabled if we give it a shape of legislation?
 By providing imprisonment, the offender is disabled for a
limited period from committing the offence.
Preventive Theory
 This form of disablement are also available in Islamic Law where
there is provision of the amputation of some body parts.
 The death penalty is also based on this theory.
 The offender is eliminated from the society so that the offences of
the same nature may be prevented.
 There is no real difference between the Deterrent Theory and
preventive Theory.
 One is to deter the offender and the other is to prevent the
commission of the offence.
Preventive Theory
 The offender is deterred so that the offender should be
deterred.
 That the offences may be prevented, it is sine- qua non
that the offender should be deterred.
 It is better to merge these two theories into one and name
them as Preventive Deterrent Theory.
Retributive Theory
 This theory is different from the above two theories.
 Retribution is considered to be a very important feature in the
punitive scheme.
 The object of Punishment according to this theory is to satisfy the
feeling of vengeance in the victim.
 This theory considers punishments that are considered morally
right.
 Tooth for tooth, eye for an eye and nail for nail is the dominating
principle of the theory.
Retributive Theory
 Punishment imposed in the words of Ben & Flew must be as
follows:
 It must involve pain or other consequences normally considered
unpleasant.
 It must be for an offence against legal rules.
 It must be upon an actual or supposed offender for his offence.
 It must be intentionally administered by human beings other than
the offender.
 It must be imposed and administered by an authority constituted by
a legal system against which the offence is committed.
Retributive Theory
 The theory cannot be denied altogether now –a –days from its
application.
 The victim takes recourse of law because he thinks that he will be
able to take revenge from the offender.
 Moreover the policy of law is always that none should take law in
one’s hand.
 If a person is harmed he should seek the remedy from proper
authorities who will prosecute the offender and the guilt will be
adjudged by the court and the punishment will be provided.
Retributive Theory
 We should not forget that sometimes innocent persons are
wrongly implicated and punished in small cases.
 The theory fails in such cases.
 If an innocent is punished what will be the retribution or
vengeance rather the person punished, may have a feeling
of vengeance and such circumstances may take a turn in
his life leading him towards hardened criminality.
Reformative Theory
 This theory is totally different from all the above theories.
 The theory says that the object of the punishment is should be
reformatory.
 The offender should be reformed.
 The offender should not be hated but his offence should be
despised.
 Offenders ate not viewed as criminals but as patients who
need treatment.
Reformative Theory
 The prisons should be converted into reformatory schools.
 The motives behind the offences, and the background of
he offenders should be clearly examined and there should
be made a way so that offenders mental environment may
be changed.
 The aim of this theory is to convert an offender into a
civilized man.
Reformative Theory
 The object of the Punishment should not be physical or mental
torture but a healthy atmosphere in the goal where the offender’s
notorious activities should be removed by providing him education
and providing him with facilities and opportunities with which he
was lacking and which prompted him to lead such a life.
 It can never be underestimated that there certain persons who can
be set right by giving them full opportunities but there are certain
person who will never hesitate from the commission or
recommission of the crimes.
Reformative Theory
 The mental attitude of every member of the society cannot be
kept at par.
 Some of them have got the sweetening nature some are neither
sweetening nor toughing nature and some are of very tough
nature.
 Some of them are so deprave, corrupt, base and mean persons
that they cannot be set right even by all possible human
agencies.
 If they are not deterred, the y are not disabled or prevented,
they have no such idea that the society will take revenge on
behalf of the victim, they can never be checked for committing
the offences.
 The reformative theory will fail for such offenders.
Reformative Theory
 If there is fear that the offenders are corporeally punished,
the offences are prevented by such fear.
 If the offender is too young, he can be reformed .
 In India the parliament has passed the probation of
Offenders Act, 1958. S4 of the Act gives some benefits to
the offenders.
 Under this section the courts are empowered to release
certain offenders on the probation of good conduct.
Reformative Theory
 In Rajendra Prasad v State of U.P
 Justice Krishna Iyer in his majority Judgment observed:
 “It is illegal to award capital sentence without considering the correction
possibilities inside prison. Anger even judicial anger, solves no problem but
creates many”
 In Hiralal Mallick v. The State of Bihar,
 The supreme court has taken the view that the courts have the power to
issue suitable directives consistent with law to suit a particular accused.
 The ancient admonition of Rigveda, [ Let noble thoughts come to us
from every side … ] is a good guideline here.
Reformative Theory
 In Inder Singh v State (Delhi Administration)
 Justice Krishna Iyer laid emphasis on rehabilitation of the
Criminals.
 Here 2 young men were convicted under the Section 302read
with section 34 and 307 of the IPC.
 The High court affirmed the conviction and sentences of Life
imprisonment were awarded
Reformative Theory
 Justice Krishna Iyer after referring two United States cases
Jackson v State of Indiana & Mc Cary v State observed on his
and justice Jaswant Singh’s behalf :
 “ So instead of bolting these two young men behind the walls
of prison and forgetting about them humanizing influences
must be brought to bear upon them so that a better sense of
responsibility a kindler attitude, behavioral maturity and values
of a good life may be generated under the controlled
conditions”
Reformative Theory

 Certain directions were issued by the Supreme Court in

this case to the State Government for the rehabilitation of
the accused in the jail and the session judge whose
sentence was upheld by the Supreme Court was also
directed to make jail visits to ensure compliance with the
directions.

Reformative Theory
 In M . H . Hoskot v State of Maharahstra,
 The accused a reader in Saurashtra University approached a bloc maker
to prepare an embossing seal in the name of Karnataka University.
 The Sessions Judge sentenced the accused with detention till the rising
of the court on the ground that the accused hailed from a respectable
family and that he was not an habitual offender and that the accused
should be given one chance to improve himself. There were cross
appeals one by the accused and the other by the State against the soft
sentence.
Reformative Theory
 The High Court imposed rigorous imprisonment for three years.
 The accused went in appeal to the Supreme Court under Art.136
of the Constitution.

The Supreme Court upheld the Sentence of the High Court, Justice
Krishna Iyer observed :

“ The Court which ignores the grave injury to the society implicit in
economic crimes by the upper berth mafia” ill serves social justice.

Soft Sentencing is gross injustice where many innocents are

potential victims.
Reformative Theory

 It is all together a different thing to insist on therapeutic

treatment, hospital setting, and correctional goals inside

the prisons ( Even punctuated by parole opportunities for

welfare work, meditational, normalization, and healthy

self expression.) so that the convict may be humanized

and, on release rehabilited as a safe citizen

THE COMPENSATION THEORY OF
PUNISHMENT
 According to this theory, the object of punishment must
not be merely to prevent further crimes, but also to
compensate the victim of the crime.
 This theory further believes that the main-spring of
criminality is great and if the offender is made to return
the ill-gotten benefits of the crime, the spring of
criminality would be dried up.
 Though there is considerable truth is this theory, it must be
pointed out that this theory tends to over-simply the
motives of a crime.
 The motive of a crime is not always economic.
THE COMPENSATION THEORY OF
PUNISHMENT
 Offences against the state, against justice, against-religion,
against marriage, and even against persons, may not
always be actuated by economic motives.
 There may be other complicated motives involved.
 In such cases, the theory of compensation may be neither
workable nor effective.
 Quite often, even in the case of offences actuated by such
motives, the economic condition of the offender may be
such that compensation may not be available.
 Therefore, this theory can at best, play a subordinate role
in the framing of a Penal Code.
THE COMPENSATION THEORY OF
PUNISHMENT
 By way of conclusion, it may be said that the
administration of criminal justice cannot have any of the
above purposes as the single or sole standard of
punishment.
 A perfect penal code must be a judicious combination of
these various purposes of punishment.
 No theory of punishment is a complete answer by itself.
 All the above theories of punishment are not mutually
exclusive. If the retributive theory is meant pure
vengeance, it cannot be accepted.
THE COMPENSATION THEORY OF
PUNISHMENT
 However, it does not mean that.
 In its true sense, it involves the working of Nemesis.
 The real idea behind retribution is to make the offender
realize-by a process of reformative detention-the
heinousness of his crime, thus preventing him and
deterring others at the same time.
THE COMPENSATION THEORY OF
PUNISHMENT
 As observed by justice Krishna lyer in Rakesh Kaushik Vs
Superintendent, Central Jail
 "The fundamental fact of prison reforms-comes from our
constitutional recognition that every prisoner is a person,
and such person hold the human potential which, if
unfolded, makes a robber a Valmiki, and a sinner a saint.
 " As stated in a British Government's White Paper entitled
"People in Prison,"-
 "A society that believes in the worth of individual beings
can have the quality of its belief judged, at least in part, by
the quality of its prison and probation services and of the
resources made available to them.“
THE COMPENSATION THEORY OF
PUNISHMENT
 In the words of Dr. Sethna, the theories of retribution,
reformation, determent and prevention go hand-in-hand,
and exist for the preservation of the moral order, the
protection of society and the rehabilitation of the offender
himself
Kinds of Punishment
 Imprisonment
 Deportation
 Corporal Punishment
 Transportation
 Capital Punishment
 Intermediate Sentence
 Fine
 Solitary Confinement