Punishment is a term which is inherent to criminal justice. It is only because of the
term punishment, that certain acts are classified as 'crimes'. Down the lane of the
history of the society, we have seen that without punishments, it would have
sometimes been impossible to tame the barbaric, as well as primitive tendencies of
It was the weapon named 'punishment' that the rulers used against their
subjects in order to maintain a fear in the minds of the public regarding the
capacities and powers of their rulers. Punishments sometimes were also given as an
insult to someone else. However, the most common punishment from which all of
us are familiar is the scolding or mild beating that we get from our parents. In that
case, what are the theories of punishment actually in case of serious crimes?
did they develop? What are the pros and cons of the various ways of punishing
people? Do the Hindu scriptures too depict any form of the punishments mentioned
hereinafter? Through this paper, we will try to answer all such questions and
understand how far the various Theories of Punishment are applicable in the
The theories of punishment are as follows:1
- Retributive Theory
- Deterrent Theory
- Preventive Theory
- Reformative Theory
Let us have a look at each one of them in detail:
The Main Purpose Reformative Theory:
Retributive Theory of punishment: The Retributive Theory of Punishment, as many people in the society would
perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal
sentence over a perpetrator. It is based on a very small doctrine, namely the
doctrine of Lextalionis, which if translated, means 'an eye for an eye'.
looked at from the perspective of very serious and heinous offences, like the Delhi
gang rape case, people may feel that it is better to inflict such retributive
punishments, so as to ensure that a deterrent is set across the society, in order to
prevent such crimes in the near future 2.
Understanding Retributive Theory of Punishment:
'The concept of retributive justice has been used in a variety of ways, but it is best
understood as that form of justice committed to the following three principles. That
those who commit certain kinds of wrongful acts, paradigmatically serious crimes,
morally deserve to suffer a proportionate punishment.
It is intrinsically morally
good without reference to any other goods that might arise if some legitimate
punisher gives them the punishment they deserve and it is morally impermissible
intentionally to punish the innocent or to inflict disproportionately large
punishments on wrongdoers.'
The above three principles clarify the needs for retributive justice even further. We
may understand retributive justice in this manner. The place where both Criminal
Law as well as Moral Law meet, is the place where mostly the retributive
punishments are generated 3.
In fact, although people may classify punishments into seven different types, but in
reality, every punishment, indeed, is retributive in nature. It is very interesting to
see that the damages claimed under Torts, or the remedies sort for environmental
violations, maybe compensatory, but at their hearts, are retributive in nature.
why aren't they labelled as retributive, instead? Well, the answer to the question is
simple. Retributive punishments are somewhat vengeful in their nature (an eye for
an eye). They may not be vengeful always, but maybe merely morally vengeful.
When we say this, it means that although the punishment is not literally the thing
that was originally done by the perpetrator, is still acts as a vengeance by virtue of
E.g: If a person rapes someone, capital punishment maybe given as a retributive
measure. If we literally give the person back what he did, i.e., sex, then it would be
pleasurable rather than torturing for him. Now that we have understood briefly that
how exactly the retributive punishment works, let us now move on to understand
the ways in which Retributive Theory is displayed in the Hindu texts and
Now, let us move on to see some important case laws regarding this theory of
Nirbhaya Judgement: 4
This case is indeed the first and foremost case to be
mentioned, while talking about retributive justice in India. In this Judgement, the Supreme Court sentenced four out of six felons involved in the extremely heinous
Delhi gang rape case to death, much to the delight of the society, as they had
committed an extremely gruesome, as well as morally unimaginable crime.
Anwar Ahmad v/s. State of Uttar Pradesh and Anr: 5
In this case, the convicted
had already undergone a six month imprisonment term, before being officially
convicted by the Court. The Court held that since the convict had been convicted
and also, the required 'blemish' had also been imposed upon him, it was not
necessary to sentence him again in the name of 'retributive punishment', as it
would inflict a very big loss upon the family as well.
Deterrent Theory of punishment: 6 In Deterrent theory of punishment, the term "DETER" means to abstain from
doing any wrongful act. The main aim of this theory is to "deter" (to prevent) the
criminals from attempting any crime or repeating the same crime in future. So, it
states that deterring crime by creating a fear is the objective; to set or establish an
example for the individuals or the whole society by punishing the criminal.
simply means, according to this theory if someone commits any crime and he/she
is punished by a severe punishment, then, it may result maybe that the people of
the society will be or may be aware of the severe punishments for certain kinds of
crimes and because of this fear in the minds of the people of the society, the people
may stop from committing any kind of crime or wrongful act. Here I used the
phrase "may stop" instead of "will stop".
That means, there is a probability of
committing any crime or repeating the same crime. The deterrent theory of punishment is utilitarian in nature. For a better understanding we can say like, 'The
man is punished not only because he has done a wrongful act, but also in order to
ensure the crime may not be committed.'
In India also, inhuman punishments are granted.
But, if we discuss or follow this theory in today's context, then, it will be very
clear that "deterrent theory" is not applicable at all or it may not be useful enough
to prevent or to deter crimes by creating a fear in the minds of people. We have a
very recent example of why deterrent theory is not successful in the case of
"Nirbhaya Rape Case, 2012". This case is the foremost case to be mentioned while
talking about deterrent theory of punishment. In this judgement, the Supreme Court
sentenced four out of six offenders involved in the extremely heinous Delhi gang
rape case to death.
Now, the most important questions are:
The answers are 'no'. According to deterrent theory, the main objective is 'to deter
crime, by creating a fear or establishing an example to the society.' Now, death
penalty is a severe punishment. In the Nirbhaya case, the Court gave death
sentence to the four convicts for committing gang rape. We can say that it is a great
example for future offenders who will think about committing a crime like rape in
future. So, according to this theory, after Nirbhaya judgment crimes like rape
should not happen. But they are happening till now. Day-by-day, rape cases are
increasing in our society
In Nirbhaya gang rape judgement, it's being suggested that justice has finally been
served to "India's Daughter" and though the decision came after a staggering seven
years, it will help to secure the safety of women and prevent rape cases in the
future. But it seems to further, as starting of the year 2020 has seen a slew of rape
cases continue unabated. As an example, we can see for a recent gang rape case
which was happened at Hathras, Balrampur, on 1st October 2020.
- Whether the death sentence to the culprits will act as a deterrent?
- Will the number of crimes against women in our society drop down
- Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled?
So, simply we
can see that there is no improvement through severe punishments also. "Death
penalty does not act as a deter to rape cases"- This is the actual message we have
understood. So that's why we can say that in today's generation there is no major
implication of 'Deterrent Theory of Punishment'.
Preventive Theory of punishment 7: Preventive theory of punishment seeks to prevent prospective crimes by disabling
the criminals. Main object of the preventive theory is transforming the criminal,
either permanently or temporarily. Under this theory the criminals are punished by
death sentence or life imprisonment etc.
Philosophical View of Preventive Theory: Utilitarian's such as Bentham, Mill and Austin of England supported the
preventive theory of punishment due to its humanizing nature. Philosophy of
preventive theory affirms that the preventive theory serves as an effective deterrent
and also a successful preventive theory depends on the factors of promptness.
profounder of this theory held that the aim of punishment is to prevent the crimes.
The crimes can be prevented when the criminal and his notorious activities are
checked. The check is possible by disablement. The disablement may be of different types. Confining inside the prison is a limited form of disablement, that is
temporary and when it is an unlimited form of disablement, that is permanent.
suggests that imprisonment is the best mode of crime prevention, as it seeks to
eliminate offenders from society, thus disabling them from repeating the crime.
The death penalty is also based on this theory. This theory is another form of
deterrent theory. One is to deter the society while another is to prevent the offender
from committing the crime.
Surjit Singh v State of Punjab 8: In this case, one of the accused, a policeman
entered the house of the deceased with the intention to commit rape but failed to do
so as the as sons of the deceased shouted for help. Another accused suggested the
policeman to kill the deceased. The accused was held liable under section 450 of
the Indian Penal Code. While on the contrary, the death penalty or capital
punishment is more of a temporary form of disablement.
- Reformative Theory of punishment:
The idea of the Reformative Theory is hypothesis. As per this hypothesis, the
object of discipline ought to be the change of the crook, through the strategy for
individualization. It depends on the humanistic rule that regardless of whether a
wrongdoer perpetrates a wrongdoing, he doesn't stop to be a person.
In this way,
an exertion ought to be made to change him/her during the time of his/her
detainment. For example, he may have executed bad behaviour under conditions
which may never happen again. Hence an effort should be made to transform him during the hour of his confinement.
The object of order should be to accomplish
the moral difference in the liable party. He ought to be told and perform some
craftsmanship or industry during the hour of his confinement with the objective
that he may have the alternative to start his life again after his conveyance from
The reason for this hypothesis of discipline is to make the criminal languish over
his bad behaviour. Here the motivation behind the discipline is profoundly
customized and rotates around the mental outlet of the person in question or his
family. The primary reason might be accomplished to parole and probation, which
have been acknowledged as current procedures of improving the guilty parties all
around the globe.
Consequently, the backers of this hypothesis legitimize
imprisonment not exclusively to separate hoodlums and kill them from society.
Not many of the advanced reformative procedures of discipline are essentially
concocted for the treatment of guilty parties as per their mental attributes, for
example, probation, parole, uncertain sentence, exhortation and pardon.
reformative techniques have demonstrated to be valuable in the event of adolescent
misconduct, first wrongdoers and ladies. Sex cases additionally appear to react
well to the reformative strategy for discipline. All the more as of late, the
reformative hypothesis is in effect widely utilized as a technique for treatment of
intellectually denied wrongdoers.
Thus, we saw the different Theories of Punishments in detail. We understood what
are the guiding principles behind them, how are they different from one another
and some very important Case Laws pertaining to the same. However, we need to
understand very clearly that punishment is something which should be inflicted
As the famous saying goes that 'Let go of a hundred guilty, rather
to punish an innocent', we need to understand that inflicting a punishment upon
someone changes his mental, physical and social status drastically. It has a very
grave impact upon him and his being. Thus, while administering criminal justice,
utter carefulness has to be executed, or else the very principles of justice would go
for a toss.
- 1 https://www.toppr.com/guides/legal-aptitude/indian-penal-code/theories-and-kinds-ofpunishment/
- Anwar Ahmad vs State Of U.P 1976 AIR 680, 1976 SCR (1) 779
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