The importance of theories of punishment has been recognized even in ancient times for the protection and welfare of the State and its people. In ancient India, the King was duty-bound to punish the offender. The purpose of the administration of criminal justice is to punish the offender. The state is the main body that punishes Criminals. Punishment is some pain or loss given to the offender for his criminal act which may either be intended to deter him from repeating the offence or maybe an expression of society’s disapprobation for his anti-social conduct or it may also be directed to reform and regenerate him and at the time protect the society from law-breakers. The topic, theories of punishment will give you all the information about the theories and forms of punishment.
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Why do people obey the law?
If you are aware of the fact that you will not get caught by the police if you do any crime, will you do the crime? Many of us may try to steal little things if possible. But what about major crimes? The fear of punishment often prevents people from committing serious offences. Punishment serves as a deterrent by making people aware of the consequences of their actions.
Laws are obeyed not just because of fear of getting caught, but also due to societal norms, personal morals, and the potential consequences of punishment. Recent studies suggest that people are more likely to obey the law when they believe it is fair and just. Trust in law enforcement and the legal system also plays a significant role in compliance.
Theories of Punishment
Punishment has been a crucial aspect of maintaining social order and justice from ancient times to the present. Various theories of punishment have been developed to explain why societies punish offenders and the objectives they aim to achieve. This article delves into the major theories of punishment, their purposes, and relevant case laws to illustrate each theory.
Deterrent theory of punishment
The deterrent theory of punishment, proposed by Jeremy Bentham, is one of the oldest theories. It suggests that the fear of severe punishment can deter individuals from committing crimes. The idea is to set an example so that others are discouraged from engaging in similar behaviour.
Key Components of Deterrent Theory:
- Severity: The punishment must be severe enough to create a strong fear of consequences.
- Certainty: The likelihood of punishment must be high whenever a crime is committed.
- Swiftness: The punishment should be administered promptly to be effective.
Case Law: Roper v. Simmons (2005) In this case, the U.S. Supreme Court ruled that executing individuals for crimes committed as minors is unconstitutional. The decision was influenced by the deterrent theory, considering the effectiveness and moral implications of severe punishment.
Retributive Theory of Punishment
The retributive theory of punishment is also known as the “Theory of Vengeance”. This theory was based on natural justice, which is expressed by the maxim “an eye for an eye and a tooth for a tooth”. It means that the pain to be inflicted on the offender of the act in the same way as he did. For example, if any person breaks the legs of another person by beating him with the rod, then his legs will also be broken by the person by beating him with the rod.
In the retributive theory of punishment, the punishment is seen as a payback for the crime which the criminal does. The main advantage of the retributive theory is that the punishment will only be given to the person who deserves this.
But the disadvantage of this theory was that the person taking revenge on the criminal is also doing the same crime which is not good in our point of view.
“An eye for an eye would turn the whole world blind”- Mahatma Gandhi.
Example: If someone causes physical harm to another, the retributive theory would advocate for the offender to experience similar harm.
Case Law: Furman v. Georgia (1972) This U.S. Supreme Court case questioned the fairness of the death penalty. The Court found that the arbitrary nature of its application violated the retributive principle, leading to a temporary halt in executions.
Preventive Theory of Punishment
The idea behind the preventive theory of punishment was the prevention of the repetition of crime by disabling the offender through some measures such as forfeiture, imprisonment, suspension of licenses, etc.
The preventive theory seeks to take away the physical power of the offender and stop him from doing the crime. This preventive theory of punishment does not lay much emphasis on the motive of the wrongdoer but tries to take away his physical power to commit the offence.
Modes of preventive theory
There are mainly three modes of the preventive theory of punishment.
- The criminal was punished to create fear in the public to stay away from the crime.
- To disable the criminal temporarily or permanently so that he should not do the crime again.
- By transforming the criminal separately through the use of rehabilitation so that the person should not do the crime again.
Expiatory Theory of Punishment
The expiatory theory was based on morality. Therefore, many jurists have refused to consider it as the legal theory of punishment. This theory is more related to ancient religious perceptions regarding crime and punishment when prisoners were placed in isolated cells to repent for their crimes from the core of their hearts and resolve to shun crime.
It was believed that anyone who sincerely represents his act deserves to be forgiven and let off.
This theory, being based on ethical consideration, has lost its relevance in the modern system of punishment.
Incapacitation theory of punishment
The incapacitation theory was used to punish the person so that the next generation would fear committing any crime. The theory works by removing that wrongdoer from society either temporarily or permanently. This theory restricts that person from doing any physical work. But, if the crime done by that person is very heinous, capital punishment is also applied.
Reformative Theory of Punishment
This is one of the best theories of punishment. The theory of reformative emphasizes on reformation of the offender through the method of individualization. This theory is based on the principle of the humanistic that even if an offender commits any crime, he does not cease to be a human being. Therefore, the offender should be reformed during the period of his imprisonment. The reason behind this theory is to reform the offender by eliminating his motive for the crime and to give him another chance to live a normal life again.
So, this is not a punishment in reality but rather a rehabilitative process. Thus, this process helps in making a criminal person a good citizen as much as possible.
Example: A person convicted of drug abuse might receive treatment and counselling to help them overcome addiction and reintegrate into society.
Case Law: Gagnon v. Scarpelli (1973) This U.S. Supreme Court case highlighted the importance of probation as a rehabilitative measure. The Court ruled that probationers are entitled to a hearing before probation can be revoked, emphasizing the focus on rehabilitation.
These are the Theories of Punishment given under the law.
Forms of Punishment
After reading about the various theories of punishment. Now let’s read the various forms of punishment that were used in ancient times to punish criminal minds.
Corporal punishment
It is a kind of discipline method where minor pain is given to the person so that he should obey the law.
Flogging
Flogging or whipping was used as a common mode of punishment in Middle Eastern countries until recent years. It did not serve any useful purpose in the case of hardened criminals and recidivists. However, it proved effective in the case of minor offences like drunkenness vagrancy, etc.
Mutilation
It was also practised in ancient India during the Hindu Period. In case of theft, one or both the hands of the offender were chopped off, and in the case of rape; his private part was cut off.
Branding
In this punishment, the criminals were branded with appropriate on their foreheads so that they could be easily identified.
Chaining
In this punishment, the liberty and mobility of criminals were completely restricted. The hands and legs of criminals were tied with iron rods and chained together.
Pillory
The criminal was brought to a public place for the execution of the sentence. Afterwards, he could even be publicly stoned if the offence was serious. This is still used as a mode of punishment for sex offenders in Islamic countries.
Fines and confiscation of property
The offences not serious in nature were punished with a fine. A part of the fine may be paid as compensation to the victim for the injury caused to him on account of the crime.
Deportation
The practice of deporting offenders was commonly in vogue in British India. Also, it was popularly known as “Kalapani”.
Imprisonment
Imprisonment can be simple or rigorous. This is the most common form of punishment that is used all around the world.
Imprisonment for life
In the case of Kartik Biswas V. UOI, the SC has made it clear that life imprisonment is not equivalent to imprisonment for 14 years or 20 years as there is no provision in IPC or Cr PC whereby life imprisonment could be treated as imprisonment for 14 years or 20 years without there being a formal remission by the appropriate Government.
Modern alternatives to Punishment
In modern times we also use some alternatives to punish criminals on their behaviours and the degree of their crimes.
Parole
The origin of parole is French which means “the promise made by the prisoner to the jailor at the time of their early release to abide the certain conditions.” The prisoner is deemed to be free from his sentence if he abides by the parole conditions.
Parole was introduced in the mid-19th century in the Norfolk Island Penal colony. At starting, the prisoners were used to earn some points and incentives through their work and their good behaviour. Once the prisoner can get enough marks he could be released from the prison on a ticket to leave. This could be revoked at any time if the person does any illegal things outside the prison.
Procedure for parole
The parole is granted after the reviews of the parole board. The board members check the history of the convict and if they find that the person is doing well throughout his sentence the person can be released on parole on certain conditions.
The parole can only be granted to the person after the reviews of the parole board. The board checks the history of the convict and his behaviour in jail and if the parole board is satisfied only then the person can be released on parole.
Once the parole is granted, the person or the parolee promises to remain within certain limits and follow the entire release plan. The parolee must report his parole officer during his parole duration.
Parole officer
A parole officer is an individual who checks the activities of the parolee after his release on parole. The parole officer also helps the person with financial and social issues if he needs it. If the parolee fails to comply with the conditions imposed on him, the parole will be revoked and the person will be put again in bars.
Parole in India
In India, there are two types of parole-
Custody Parole
This is temporary parole that is limited only to emergency conditions like the death in the family of any prisoner, the marriage of a family member, serious illness, etc. The custody parole is only for six hours, during this time the prisoner is allowed to visit the desired places and return to the prison. The prisoner will be escorted by a police constable for public safety and to ensure that he will come back to the prison timely. The grant for custody parole is subject to verification from the concerned police station.
Regular Parole
This parole is granted for a maximum period of 1 month except in cases where the convict has served at least one year of his imprisonment.
Grounds for allocation of Regular Parole-
- The marriage of a family member of a convict
- Death of accident of family member
- Serious illness of a family member
- Delivery of a child by his wife
- Severe damage to the property or life of the convict’s family
- Filing an SLP by the convict’s family
Convicts which are not eligible for being released on Parole are who is:
- Involving in criminal activities against the state
- The threat to national security.
- Not citizens of India.
- Convict of multiple murders or for murder & rape of children.
Probation
Under probation, the person is not put behind bars. It is an alternative to prison. In probation, the court suspends the sentence of an offender on certain conditions to live in a society with or without the supervision of the probation officer.
The probation was introduced in India in 1958 bypassing the Central Probation Act. Section 562 of the CRPC also talks about the release of the offender on probation. It is to be noted that the probation is applied only to juvenile delinquents or the first offenders.
Conclusion for theories of punishment
The theories of punishment gave the bare idea of how the old people were dealing with the Crimes. At present, though the crime is more heinous, still we are using simple methods of punishment so that the criminal can take one more chance to save his life.
Laws and punishments should be made according to the needs of society. In today’s time, it happens many times that the person is not guilty but still, he is stuck in the case. That is why our law is not very strict so that the innocent should not be punished.