Theories of punishment- An overview of the nature and features of various theories of punishments.

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History and origination

“Punishments have been prescribed by the sages so that righteousness may not be outraged and unrighteousness may be cured”.[1]

Since religion and agreement formed the foundation of ancient Indian law, it is obvious that theology had a significant role in concerns of retribution and justice as well.

This does not imply that punishment was used as a religious stick to frighten the populace; rather, the general conception of punishment was that it should help the man or the criminal to rehabilitate himself in accordance with the mandated precepts of Dharma.

Following a thorough examination by the Court, anyone who disobeyed the king’s decree or the rules of justice was severely punished. “Danda” denoted punishment. The exercise of authority is a necessary condition for the administration of justice. Without some level of power, in every organization, whether social or political, human society cannot function.

Given this perspective, it is clear that Danda served as the state’s coercive force. The state must possess some form of coercive power. The term “Dandniti” was originally used by Uanasa[2], and the Mahabharata makes reference to the “Book “Dandniti” according to Prajpati.

Danda and Dharma are sometimes used interchangeably, and it is even said that the Danda is Dharma itself and the Soul of Dharma. The entire cosmos is under Danda.[3]  As a result, we discover that the Danda Punishment Theory was primarily theological and metaphysical, and an effort was made to fully explore its abstract aspect.

Even if a practical approach to law was provided in the Vedic age, its application was completely disregarded in the subsequent period. The Danda principle is almighty.[4] One particular explanation for Danda’s religious colouring is that religion confers legitimacy or authority on Danda. The Hindu concept of sanction and the contemporary notion of sovereignty are very similar.

Speaking of Danda’s authority, it has been noted that “Even the Gods and Demi-Gods are subject to its authority,” meaning that Danda “rectifies the entire world.”   Danda has been equated with Dharma, saying that “all men enjoy the world straying away from Svadharma via the sanction of Dharma.[5] Danda is the institution that embodies the will of the state and, as such, enjoys both a moral and a legal pre-eminence. It is the source of societal harmony.

The fundamental tenet of the ancient Indian Theory of Punishment was that the King should administer punishment for wrongdoing in order to maintain social order. King was only permitted to inflict Artha and Vadha (fine and corporal punishment). Only the Raja, or President, had the authority to find the accused guilty, but he had to do it in accordance with the “Pareni Pustaka,” or the Book of Precedents. [6]

Danda was also notable for its restraint principle. According to Gautama, the development of punishment was used to check wrongdoers and miscreants. Kautilya proposed a realistic plan for elevating the offender’s soul.

According to some scholars, crime is inherent in a man’s social makeup and contagious from person to person as an illness to a person. It has been stated that crime needs to be eradicated from the grass root level for it to be stopped from spreading.[7]

Sukra, however, was of the opinion that rewarding punishment leads to the eradication of bad habits and that a king must award punishments for the furtherance of virtues and religion. YagSavalkya holds that punishment should set the subject on the proper course.   The following factors were taken into consideration before imposing punishment:

Considerations: (1) Motive (2) Circumstances (3) Criminal Capacity, and (4) Crime. There have been many other forms of punishment developed, including (a) Vadhdanda or Death Penalty, (b) Arthadanda or Fines, (c) Vagdanda or Verbal Punishment, and (d) Moral Disapproval. According to the Pali writings, a Brahmin did not enjoy any legal privileges, and if he committed a crime, he was certain to be put to death.

More recently, insights into the punishment that have emerged outside of the university in the real world have been influenced by philosophical contemplation on punishment and are part of this process.

In 1974, a portion of sociologists and other esteemed academics lost faith in the rehabilitative outcomes of programs implemented in prisons with this end in mind due to declines in offender recidivism. This complexity raised doubts about the efficacy of the primary goal of restoration within the context of current criminological theory.

Additional doubts about the deterrent effects of punishment (whether specific, general toward the wrongdoer, or general, geared toward the public) were added to those; as a result, there appeared to be only two plausible rational goals to pursue within the application of punishment under the law: social defence through confinement, and retributivism.

By taking this approach, the objectives of retribution came to rule, and in some cases entirely succeed, in the imaginations of politicians and social theorists. Philosophers were developing their own arguments at the same time as these basic socio-legal changes, updating old notions associated with the names of Immanuel Kant and George Wilhelm Friedrich Hegel to come up with two central concepts that remarkably mesh well with those highly regarded:

– First, philosophers argued that the practice of a penalty should not have as its primary goal—or even as one of its numerous secondary goals—the rehabilitation of guilty criminals.

– Second, ensuring justice or fairness in punishment is the primary goal of sentencing, and a straightforward sentence is determined by the perpetrator’s responsibility as well as the harm done to the victim and society as a whole.

Philosophers came to these conclusions by arguing that there are fundamental elements to punishment in the dreadful definition of the practise, in the standards controlling fairness in punishment, and in the goal of the practise itself.

The indeterminate sentence in the service of the reintegration ideal for wrongdoers behind bars, which was the dominating criminal policy of the mid-century, was thus rendered obsolete. Probation was in place because additional punishments were meted out in conjunction with expanded roles, but parole release virtually came to an end.

In its place, uniform determinate punishment was introduced, which may prevent the absurdities of unattainable pardon goals and ensure fair justice for all of the lawbreakers.

Nature and features of different theories of punishment

Before diving into the various theories of punishments, this paper will go through the different types of punishments, which were imposed in Ancient and Modern India, to better understand the theories such punishments are based on.

Punishments in Ancient India

According to the history of the prison system, punishments were brutal and cruel. The punishment’s goals were revenge and deterrence. The offenses decreased in quantity as a result of his penal procedure. Such penalties fall under the following categories:

  1. Death penalty/Capital punishment

The term “capital punishment” refers to the execution of a person as the sanctioned punishment for a crime. In plain English, it refers to a government-approved practice in which a person is executed by the state as retribution for a crime.

Every little crime carried the death penalty in antiquity. It is the harshest type of penalty. The methods used to carry out death penalty executions have occasionally changed.

  1. Corporeal punishment

It refers to a punishment that is meant to harm a person physically. It is sometimes referred to as physical discipline. It is a form of retribution for breaking the law by physically inflicting pain on the offender. The aim was also to set an example in front of potential lawbreakers.

  1. Social penalty

It is a punishment in which the recipient is forbidden from entering into any form of agreement with third parties or from moving to another location where third parties are not allowed to assist him in any way without risking further punishment. In this punishment, the humiliation of the convict was the core element.

  1. Financial sanctions

It is occasionally referred to as the imposition of a fine. It was a typical penalty that was not severe in nature and was given in particular for breaking road laws, revenue laws, and petty crimes. In addition, it covers the expense of the criminal investigation as well as the payment of damages to the victims of the crime.

Punishments in Modern India

Even though some societies still use the more primitive types of punishment, these have also developed with civilisation and are now less gruesome or severe. The harshness of the penalty now is determined by the crime. If a person commits a serious crime, they may be subject to harsh kinds of punishment.

Fines, jail time, or both can be used as forms of punishment in industrialised societies. Instead of punishing wrongdoers directly, such punishment seeks to correct unlawful behaviour. The following are the primary punishments that offenders are subject to under Section 53 of the Indian Penal Code:

  1. Death sentence

The death penalty refers to the execution of a person by a government official. The most severe punishment available in modern society for serious crimes is the death penalty. It is the subject that current criminologists argue over the most. Like in earlier or earlier times, it is not given for minor offences.

It is granted in cases of serious offences. The definition and source of punishment have varied as society has developed. According to the Indian Penal Code, it is only given out in the “rarest of rare situations.”

  1. Life in prison

A person gets sentenced to life in prison if they are convicted of a crime. For crimes that allow for either punishment, it is one of the finest alternatives to the death penalty.[8] According to Section 57 of the Indian Penal Code, there is a set term of life imprisonment, although, in cases of fractional durations, the sentence should be 20 years.

  1. Imprisonment

According to the dictionary, incarceration is the act of placing someone in jail or a prison as a kind of punishment. The three categories of imprisonment are as follows:

Rigorous imprisonment: Hard labor is typically meant by the phrase “rigorous imprisonment.” In this type of incarceration, the criminal is required to perform hard labor or labor-intensive tasks while incarcerated, such as grinding maize, excavating the ground, gathering water, etc.

Simple Imprisonment: In this type of imprisonment, the offender is merely kept in custody and is not required to perform any type of labour; however, they may be allowed to perform labour of their own choosing in exchange for compensation.

Solitary Imprisonment: Maintaining a person in solitary confinement involves isolating them from any outside contact. It contradicts the idea that a person’s perception of beauty can affect him and cause him to change his behaviour. Solitary confinement is allowed under the Indian Penal Code Sections 73 and 74.

  1. Forfeiture

According to dictionaries, “forfeiture” is the loss of something or its surrender as a punishment, and “forfeiture of property” is the forfeiture of something or the loss of money as a result of breaking the law. The forfeiture of property is covered by three provisions of the Indian Penal Code, and they are as follows:

– Property used or intended to be utilized in committing trespasses on the territories of friendly nations is prohibited under Section 126.

– Property received with the knowledge that it has been seized through armed conflict or robbery is prohibited under Sections 125 and 127.

– Property acquired by a public employee who is not permitted by law to acquire such property is covered by Section 169.

Now, the paper will elaborate on the different theories of punishments.

Theories of punishments

1)Retributive theory

The lex talionis, which means “an eye for an eye and a tooth for a tooth,” is drawn from the Code of Hammurabi and is the most traditional example of retributivism. The majority of retributivists think that the guilty should endure pain.

The application of pains of punishment to an offender who is morally responsible is what Herbert Hart termed as retributivism. [9]Retributivism has been criticized for appearing to appeal in some way to “moral desirability.” A thief is ethically responsible for his actions if he aims to take money from someone. And the thief merits punishment as a result of this moral obligation.[10]

According to the retributivist philosophy of punishment, the act of being punished serves as “payback” for the crime(s) that have been done. Retributive justice, for the most part, aims to punish a person for a crime in a way that makes up for the crime.[11]

Retributivists contend that because of their transgression, criminals should be punished. Justice requires that we punish them if they deserve it. We commit injustice if we don’t punish offenders because they won’t get what’s coming to them.[12] Another school of retributivists views punishment as a means of eliminating the “unfair advantage” that offenders have as a result of committing the crime.

Similar to how a thief gains from stealing someone else’s property when they break the law. The unlawful and unjust advantage should be eliminated by the punishment administered. The community of law-abiding citizens is perceived as being exploited by the criminals. Their unfair advantage is eliminated by the punishment.[13]

Hegel’s early nineteenth-century interpretation of retributivism included the idea that punishment should cancel, negate, or annul the offender’s offence. According to this perspective, the offender disregards the victim’s rights when they perpetrate a crime. If the crime goes unpunished, it will be seen as an innocent act.[14]

However, by punishing the offender, the pre-crime situation is returned. Hampton advanced this viewpoint, claiming that by committing the crime itself, the offender disregards the victim’s value as a human being.

Retaliatory punishment upholds “the value of the victim denied by the wrongdoer’s action through the creation of an event that not only repudiates the action’s message of superiority over the victim but does it in a way that affirms them as equal.” In this way, the sentence “may negate the crime’s message that they are not of equivalent value.”

In the Dhananjoy Chatterjee case[15], the Supreme Court ruled that imposing punishment that is proportional to the offence must be done in order to reflect the general public’s disgust and that this is how the legal system responds to society’s call for justice.

It is unfair to victims and society to withhold punishment.

2)Deterrent Theory

Deterrents can mean a variety of things. Deterrence is an effort to dissuade immoral individuals from following improper and unlawful routes. This theory specifies the severe consequences, i.e., punitive acts against the wrongdoer to end the threat, out of the five doctrines of criminal law, namely, deterrent, retribution, preventative, reformation, and expiatory theories.

Criminals are also discouraged from perpetrating the same crime in the future by such actions. The fear of being caught is significantly worse than heavy punishment, according[16] to Daniel S. Nagin’s article “Deterrence in the Twenty-First Century,” which summarises some of the fundamental themes of deterrent theory.

The ability of the legal system to apprehend criminals can cause other offenders to develop terrible madness. Sentinels and hotspot policing are two police tactics that are quite effective in eliminating the threat. Criminals are more likely to change their behavior if they see armed, uniformed police officers than if they read the stringent penalties on a piece of paper.

Deterrence is of two types –

  • Specific deterrence

This kind of deterrence affects a particular person. A criminal will be discouraged from committing similar crimes in the future if he receives a harsh punishment for his misdeeds, according to the theory of particular deterrence.

For instance, if an armed robber receives a 10-year sentence, the particular deterrence reduces the likelihood that, upon release, he will commit another armed robbery. However, research demonstrates that the efficacy of particular deterrents differs depending on the circumstance.

  • Deterrence in general

The goal of general deterrence is to stop people from committing the same crimes as those who have already been found guilty of them. General deterrence is more concerned with educating the populace as a whole, not simply those who have been charged with a crime. The theory behind this is that if someone is given a harsh punishment, the public will see this and be discouraged from indulging in the same or similar activities.

The death penalty is an excellent example. The public is deterred from committing the same or similar crimes when a criminal is given the death penalty for their crime.

The Supreme Court emphasized “deterrents” amidst the cacophony of reform initiatives. For instance, the Supreme Court determined in Munna Choubey case[17] that imposing punishments without taking into account how they will affect social order may sometimes be ineffective.

Crimes that have a significant impact on social order and the public interest, such as acts against women, fraud, abduction, misappropriation of public funds, treason, and other crimes of moral corruption, cannot be disregarded and as such call for exemplary treatment.

3)Preventive Theory

The primary goal of the preventive theory of punishment is to deter future criminal activity. This is accomplished by rendering the offender incapable of committing more crimes by imprisoning him or her or by causing some form of pain in retaliation for the offense they have committed.

American jurist and legal expert Justice Holmes argued that it is impossible for a statute to make anything illegal without also demonstrating the legislator’s will and intent to do so. He believes that the main and only universal goal of punishment is prevention.

The goal of the law is to give people a fresh reason not to do certain actions by threatening them with particular punishments if they do them. If one continues to do them, one must inflict pains in order for the threats to be taken seriously because it treats criminals humanely, utilitarian theory proponents like Jeremy Bentham and John Stuart Mill embrace this viewpoint.

The following three methods of prevention can be used:

– Creating in the mind of a potential criminal a fear of punishment

– By either permanently or temporarily incapacitating the actual wrongdoer

– By informing the general population about the potential for punishment

The efficiency of the legal system, including how quickly it operates and how accurately its investigations and reports are produced, is what determines how effective the preventative theory will be. If punishment is given too slowly, the offender might not feel pressured to conduct the same act again, and the public might lose faith in the system that is based on this premise.

In the case of Surjit Singh case[18], one of the accused went into the victim’s home with the goal to rape her, but when the woman screamed for aid, the other accused recommended killing the victim. According to section 450 of the Indian Penal Code, which only allows for imprisonment for terms of up to 10 years and a fine, the accountable accused was charged with house-trespass in order to commit a felony punishable by life in prison.

If the accused had actually committed the crime of rape, he would have faced life in jail or lifelong disability. But in this case, the disability was just transitory, lasting ten years.

By disabling the criminal, the preventive theory of punishment aims to reduce the likelihood that the offender would commit the same crime again. It seldom ever considers the reason behind the crime or the circumstances that let the criminal gain momentum.

It also doesn’t address the issue of rehabilitation because it relies on the jail, which involves physically restraining the offender in order to prevent him from committing the crime again. Additionally, it serves as a warning to the public by serving as an example of the offender and highlighting the possibility that a particular offense could result in the loss of freedom or, in rare circumstances, even life.

4)Reformative Theory

The goal of punishment, in accordance with reformative philosophy, should be to change the offender through an individualization strategy. The humanistic idea that an offender does not instantly cease to be a live human being just because he commits crimes serves as its foundation.

The fundamental tenet of the reformative theory is individualism. Offenders must undergo metamorphosis, and there must be faith in efforts to rehabilitate and educate them. This idea holds that both the environment and circumstances of society, as well as the criminal’s general physical or emotional state, are related to crime.

The offender is therefore seen as a patient. Because of this, punishment is not employed to get back at the offender or to torture or harass them. According to this theory, conflicts between the criminal’s character and intent are what lead to the majority of crimes.

It should be mentioned that a person may violate the law either because the temptation of the intent is larger or because the constraint provided by the character is relatively weak. According to reformative philosophy, punishment has a greater rehabilitative purpose than deterrence.

The aim of the nation’s criminal justice system should be to alter the offender rather than only punish him, claims the reformative or rehabilitative view of punishment. The philosophy underlying the idea of punishment is not merely to provide fairness to the victim but also to maintain communal safety and security.

It is important to remember that the goal of punishing a criminal is to create a peaceful society, not just torment or humiliate him. The concept of punitive action is frequently connected with the law of offenses in contemporary jurisprudence.

The purpose of punishment is to rehabilitate the offender so that he can re-join society as an average, law-abiding citizen. Instead of focusing on the offense itself, the harm caused, or the potential deterrent effect of punishment, this article focuses on the offender and his character.

The President of India has the authority to pardon an offender under Article 72 of the Indian Constitution of 1950. Article 161 of the Indian Constitution grants the state’s governor the same power. When the President pardons a criminal, all penalties, fines, and disqualifications associated with the conviction are entirely lifted.

It has long been understood that giving that power to a body other than the legal system is vital since the authority of pardon originates to prevent injustice, whether it be from harsh, unfair laws or from verdicts that lead to injustice.

One of the most important aspects of the Juvenile Justice (Care and Protection of Children) Act, 2015, is the philosophy of handling juvenile offenders. The purpose of the Act is to rehabilitate children and prepare them to contribute to society.

This is shown by the fact that juvenile offenders are referred to as delinquents rather than criminals if they are under the age of 18 (16 in the case of grave offences). The discharge of a wrongdoer due to good behaviour is covered under Section 4 of the Probation of Offenders Act, 1958. If the perpetrator is found guilty of a crime carrying a death sentence or a life sentence, Section 4 of the Act does not apply.

Most appropriate theory for the current climate

According to the Supreme Court’s ruling in Dr. Jacob George case[19], the ultimate goal of punishment should be deterrent, reformative, retributive, preventive, as well as compensating. It wouldn’t be a fair punishment if one theory were to be preferred over others. Each theory must be comprehended separately and implemented in light of the circumstances of the case, the type of offence committed, and the perpetrator.

According to the Supreme Court, “every saint has a history and every sinner has a fortune,” which means that regardless of whether a person is considered to be an offender by the legal system or not, it is impossible to say that they have never committed any wrongdoing. It cannot be said that he had always committed crimes.

The Supreme Court essentially combined all the theories of punishment in this case and recommended that each theory be implemented in accordance with the specific facts and circumstances of each case.

The role of the authorities is to not only stop the crime from happening again or to punish the offender in a way that serves as an example to the rest of society, but also to reform the offender, comprehend his or her background, and determine the motivation behind the crime, which is something that the preventive theory of punishment neglects to do.

Preventive or even deterrence theory will prove to be excessive for first-time offenders or minor offences, however it may be helpful when dealing with significant crimes or repeat offenders. Punishment must be administered with extreme caution.

The severity of the sentences a court imposes reflects the competence of the judiciary as well as the morals of the entire legal system of a country. Punishment, especially severe or protracted imprisonment, has a significant impact on a person’s mental and physical capabilities. Although punishment is unavoidable, it is important to maintain the values of justice and human rights.

Conclusion

Punishment is an extremely serious act, even if it is administered by regulated authority. As a result, it needs to be justified on moral and charitable grounds. The creation of distinct theories of punishment is motivated by the need to offer a convincing defence for applying punishment to a specific person. The ideas offer a worldview that serves as the cornerstone of a legal system that relies on punishment to deter crime.

References:

[1] Manu VIII. 122.

[2] Mudraraks 1

[3] Gatell, ‘History of Political Thought’, p. 27

[4] Manu. VII, 2

[5] Rajdharmanusasana Parva, 121.

[6] Jolly, ‘Hindu Law and Custom,’ p. 280.

[7] Jayswal, ‘Manu and Yagnavalkya,’

[8] Indian Penal Code,1860

[9] R.A.Duff and Stuart P.Green, ‘Introduction: The Special Part and Its Problems’ in Defining Crimes: Essays on the Special Part of the Criminal Law (OxfordL Oxford University Press, 2005): 1-20

[10] T. M. Scanlon, What We Owe to Each Other (Cambridge: Belknap/Harvard University Press,1998), p. 266.

[11]  John Cottingham, ‘Varieties of Retribution’, Philosophical Quarterly 29 [1979], pp. 238-46.

[12] Thom Brooks, Punishment (1st, Taylor & Francis, 2012) 20

[13] John Deigh and David Dolinko, The Oxford Handbook of Philosophy of Criminal Law (1st, Oxford University Press, Oxford 2012) 34

[14] Hegel, Philosophy of Right (1st, Dyde, 1952) 100

[15] Dhananjoy Chatterjee vs. State of West Bengal 1994

[16]https://www.journals.uchicago.edu/doi/abs/10.1086/291932?journalCode=et 

[17] State of Madhya Pradesh vs. Munna Choubey & Anr.(2005)

[18] Surjit Singh vs. State of Punjab (2007)

[19] Dr. Jacob George vs. State of Kerala (1999)


This article has been authored by Aarzoo Sahdev, a student at IIM, Rohtak.


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