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CRITICAL ANALYSIS OF THEORIES OF PUNISHMENT
PUNISHMENT
Punishment, according to the dictionary, involves the infliction of pain or forfeiture; it is the infliction of a penalty, chastisement or castigation by the judicial arm of the State. But if the sole purpose of punishment is to cause physical pain to the wrong-doer, it serves little purpose. However, if punishment is such as makes the offender realize the gravity of the offence committed by him, and to repent and atone for it (thus neutralizing the effect of his wrongful act), it may be said to have achieved its desired effect. A person is said to be "punished" when some pain or detriment is inflicted on him. This may range from the death penalty to a token fine. Thus, punishment involves the infliction of pain or forfeiture; it is a judicial visitation with a penalty, chastisement or castigation. In this book entitled "Criminal Behaviour", Walier Reckless describes punishment as "the redress that the commonwealth takes against an offending member." In the words of Westermarck, punishment is "Such suffering as is inflicted upon the offender in a definite way by, or in the name of the society of which he is permanent or temporary member. "The objects of punishment, -The needs of criminal justice are considered to be five, namely: A. Deterrent Theory B. Preventive Theory C. Reformative Theory D. Retributive Theory E. Compensation Theory F. Expiatory Theory
THEORIES OF PUNISHMENT
A. DETTERENT THEORY
'To deter' means, “to abstain from action/ doing ". Deterrent means, "Infliction of severe punishments with punishments with a view to prevent the offender from committing the crime again." According to this theory, the object of punishment is not to only prevent the wrongdoer from doing a wrong a second time, but also to make him an example to others who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for control of crime. A Judge once said: "I don't punish you for stealing the sheep but so that sheep may not be stolen." The aim of punishment is not revenge but terror. According to Manu "penalty keeps the people under control, penalty protects them, penalty remains awake when people are asleep, so the wise have regarded punishment is a source of righteousness" According to Paton "The deterrent theory emphasis the necessity of protecting society, by so treating the prisoners those others will be deterred from breaking law. The deterrent theory was the basis of punishment in England in the Medieval Period. Sever and inhuman punishments were order of the day and inflicted even for minor offenses like pick pocketing and stealing etc. The culprits were subjected to the severe punishment of death by stoning and whipping. In India during the Mughal period, the penalty of a death sentence or
(i) Individual (ii) General. Individual Deterrence: Individual deterrence refers to the effect of punishment in preventing a particular individual from committing additional crime. In the past this form of deterrence often took the form of incapacitation, making it impossible for a particular offender to commit again the crime for which he or she had been convicted. For example, the hand of the thief would be amputated; rapist would be castrated; prostitutes would be disfigured in way that would repel potential customers; and so on. ' The justification of the punishment is that the criminal is to be punished simply because he has committed a crime. General Deterrence: The second type is general deterrence, is based on the assumption that punishing individuals who are convicted of crimes will set an example to potential violators who, being 'rational' beings, would wishing to avoid such pain, will not violate the law. Again, we can see the influence of the classical thinkers, with their emphasis on free will and rational choice. People will seek pleasure and avoid pain, thus, if the punishment is perceived as too painful, people will avoid the criminal activity that might result in that punishment. The punishment was to be a terror to evil-doers and an awful warning to all others who might be tempted to imitate them Utility of deterrent theory Imprisonment as deterrent factor may provide temporary relief as long as criminal is inside the prison because motive of crime cannot be destructed by fear factor. Sanction as pain some time produces ironical results. It is thought that punishment would deter offenders, in reality it hardens the criminals because once criminals accustomed with punishment, deterrence loses its strength on such criminals.37 Under these circumstances, reliance on rehabilitation and prison reformation would give better result. The most effective deterrent punishment is death sentences, where as imprisonment has not only deterrent value but reformative also. The strongest criticism against deterrent is that it has failed to reduce crimes. Should it be given up? The conclusions are based on the percentage of crime rate which are available. The tragedy of deterrent theory is that number of criminals it has failed to deter measures its efficacy but not by number it has in fact deterred. The classic illustration from earlier times is the number of pickpockets went up when people gathered to watch public hanging of pickpocketers. It is difficult to collect the data of persons who have deterred. The success of Deterrent theory can be measured by taking into consideration of data
when there is breakdown of law and order. Just consider the number of crimes committed aftermath Indira Gandhi assassination. Same thing happened in Gujarat when the Godhra incidence took communal shape which led to break down of law and order. Therefore, the question in case of pickpocketers is not how many pickpockets exist in spite of the penalty against them, but how many more would have been there without such penalty. Glanville Williams holds the same view by saying that how much worse off we should be if we had no social provision for punishing evildoers. Abolition of Death Sentence Powerful argument for the abolition of death penalty is based on the Report of the Royal Commission on Capital Punishment. “[T]here is no clear evidence … that the abolition of capital punishment has led to an increase in the rate, or that its reintroduction has led to a fall.” In pursuance of this report, the British government abolished death sentences by passing The Murder (Abolition of Death Penalty) Act
- Statistics show that death sentence has not produced the desired result. If it really does deter, then there ought to be a lesser number of homicide in places where the penalty is retained than where it has been abolished. In India, crime rate is high in spite of having death sentences where as European countries abolition of death sentences has not resulted into reduction of crime. There are some justifiable grounds for abolition of death sentences.
- It is revengeful.
- Destruction of life is not a wish of God or nature.
- It is immoral. Society has no right to take life that is incompatible with modern morality and human rights.
- India believes in non-violence philosophy.
- Death sentence is unjust for the family of offender. Irretrievable error of justice is most practical reason for its abolition.Unlike life imprisonment, executed death sentences would not give opportunity to judiciary to correct its error of judgment. In the late 1990s, a powerful new challenge to death penalty emerged the risk of executing innocent people. Aided particularly by the availability of DNA testing, more than 116 death row prisoners have been exonerated (declared to be not guilty) and realized from prison from 1977 to 2004 in USA. This information leads to the logic that some other innocent might have been executed. Abolitionist of death sentence encases on this. The main reason for earlier day’s death sentences is lack of prison infrastructure. With arrival of means
B. PREVENTIVE THEORY
Preventive theory is also known as 'theory of disablement.' According to this theory, punishment is based on the proposition, "not to avenge crime but to prevent it" The aim of this theory is to disable the criminal. Offenders are disabled from repeating the crime by awarding punishments, such as death, exile or forfeiture of an office. By putting the criminal in jail, he is prevented from committing another crime. The supporters of this theory recognize imprisonment as the best mode of punishment because it serves as an effective deterrent as also a useful preventive measure. Bentham supported the preventive theory because of its humanizing influence on criminal law. According to Justice Holmes " There can be no case in which the law- maker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed." According to Paton : " The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose. In the ultimate analysis, the preventive mode of punishment works in three ways, viz- a) by inspiring all prospective wrong-doers with the fear of punishment; b) by disabling the wrong-doer from immediately committing any crime; and c) by transforming the offender, by a process of reformation and reeducation, so that he would not commit crime again. In this connection, the following extract from Rule 58 of the International Standard Minimum Rules is illuminative:"The purpose and justification of a sentence of imprisonment or a similar measure derivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his
return to society, the offender is not only willing, but also able, to lead a law –abiding and self-supporting life." Preventive philosophy is the best mode of punishment because it serves as Effective deterrent and also useful preventive measures. The effective of preventive theory much depends upon promptness and proportion factors. The delay in inquires or investigation by the public authority makes sanction ineffective. The effectiveness of sanction is further scaled down as courts grants bail to accused on the ground that accused presumed to be innocent until guilt is proved. There is considerable dispute, as to who should be restrained and how long. Confinement should involve the least restraint needed to furnish reasonable protection against crime. The naked truth is that protection can never be absolute. Certain amount of crime is inevitable and society must take chance against them. Effective incapacitate depends upon various factors like, criminal’s history, background, and personality. In spite of all these things it is not possible to predict accurately whether or not a particular criminal will repeat crime. Incapacitation should not be disproportionate, wasteful and expensive. Unless restraint is either permanent or is coupled with a meaningful rehabilitative program imprisonment will not restrain criminal conduct, but will merely postpone it. Incapacitation affects ability and an opportunity to commit criminal act, but has no influence on emotional and criminal intent and expectation of profit. Therefore, incapacitation is being temporary than permanent. CRITICISM Critics points out that Preventative Punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the association of Harden Criminals.
True it is, that the reformative element had long been neglected in the past. However, the present tendency to lay heavy stress on this aspect seems to be only a reaction against the older tendency to neglect it altogether, and has therefore, the danger of leaning to the other extreme. Whereas reformation is an important element of punishment, it cannot be made, the sole end in itself. It must not be overlooked, but at the same time, it must not be allowed to assume undue importance. In the case of young offenders and first offenders, the chances of long-lasting reformation are greater than in the case of habitual offenders. Again, some crimes, such as sexual offences, are more amenable to reformative treatment than others. Further, reformative treatment is more likely to succeed in educated and orderly societies than in turbulent or under-developed communities. CRITICISM: Critics of this theory state that if Criminals are sent to prison to be transformed into good citizens, a prison will no longer be a 'prison' but a dwelling house. This theory has been proved to be successful in case of young offenders.
D. RETRIBUTIVE THEORY
'Retributive' means, punitive or payback or make a return to." In Primitive society punishment was mainly retributive. The person wronged was allowed to have revenge against the wrongdoer. The Principle of 'an eye for an eye', 'a tooth for a tooth ', a nail for nail, limb for limb was the basis of criminal administration. According to Justice Holmes 'It is commonly known that the early forms of legal procedure were grounded in vengeance.' According to Sir John Salmond the retributive purpose of punishment consist in avenging the wrong done by the criminal to society. The idea behind this theory is to make the offender realize the suffering / pain. The advocates of this theory plead that the criminal deserve to suffer. The suffering imposed by the State in its corporate capacity is considered the political counterpart of individual revenge. It is urged that unless the criminal receives the punishment he deserves, one or both of the following effects will result, namely, the victim will seek individual revenge, which may mean lynching (killing or punishing violently ), or the victim will refuse to make a complaint or offer testimony and State will therefore be handicapped in dealing with criminals. The modern criminology discards retribution in the sense of vengeance, but in the sense of reprobation, it must always be an essential element in any form of punishment. It aims at restoring the social balance disturbed by the offender. The offender should receive as much pain and suffering as inflicted by him on his victim to assuage the angry sentiments of the victim and the community, or in other words, the theory, therefore, underlined the idea of vengeance or revenge. Thus, the pain to be inflicted on the offender by way of punishment was to outweigh the pleasure derived by him from the crime. Retributive theory is closely connected with the notion of expiation which
- Retributive punishment is neither cruel nor barbaric but civilized because inflected punishment is proportionate to the crime that is just. Utility theory recommends more punishment than the profit of crime.
- Retributive is impartial and neutral. By inflecting proportionate punishment to the crime, it considers the interest of wrongdoer and society equal. Reformative theory gives more weight to interest of criminal and deterrent theory priority would be social interest than criminal.
- Retributive is based on the Roman doctrine of Poena sous tenere debet actors et non alios means punishment belongs to the guilty, and not others. It punishes voluntary acts and excludes involuntary acts based on less blame worthy acts like, act of insane person or immature person. Utilitarian demands punishment for every kind wrongful act either intended or unintended. So innocents are likely to be punished which is harsh.
- Retributist always treat the human being with dignity and honor by saying that the punishment is an end in itself not means to an end. However utilitarian treat the person either as a commodity or animal because his punishment used as means to teach lessons to others to prevent crimes, which degrades the human value.
- Hallmark of retributive theory lies in its nature of mercy. Once criminal pays his debt to the society in the form of punishment, his sin is expiated and admitted back to mainstream of society again. This kind of philosophy is missing in the deterrent punishment. Demerits :
- Retributist have failed to elaborate any guidelines or principles for proportionate punishment that makes difficult task for judges to measure punishment for crimes.
- Object of punishment is not only punishing the criminal but to prevent the crime in future also. Punishment is means to an end not an end itself.
- Kant philosophy of murder warrants death sentences as not acceptable to the Modern civilized society. The retributive theory propagates human being feelings that justice is most essential for sustaining legal order in society. This is what reflected by the Indian society in Ruchika and Jessay cases. In Ruchika’s case, the trial court
pronounced six months sentences for retired DGP of Haryana S.P. Rathore for molesting a girl of 13 years, Ruchika, who later committed suicide. Judgment of trial court shocked the Indian civil society and condemned it with one voice that forced the prosecution to file appeal in the High court that enhanced the sentence to 18 months. In Jessica Lal murder case where Manu Sharma and others murdered her in an open bar, trial court acquitted all the accused on ground that there was no evidence. People were shocked, stunned and criticized the judgment of the court. Delhi High Court by considering the outrages and stunning remarks of people conducted the proceedings on daily basis and passed sentences of life imprisonment on the accused, which is confirmed by Supreme Court on appeal. Two cases clearly send message that people’s hunger for justice, if not honoured, the society will not honors Criminal Law. Hart has put the same logic in different words, “Sanctions are therefore required not as the normal motive for obedience, but as guarantee that those who would voluntarily obey shall not be scarified to those who would not. To obey without this, would be to risk going to wall. Retributive theory based on the doctrine of Roman law, nulla poens sine leges and nulla peona sine crimen which means no punishment outside the law, and no punishment except for crime.20Undue sympathy to impose inadequate punishment would do more harm to the justice system that undermines the public confidence in the efficacy of the law.Sentencing process should be stern where it should be, and tempered with mercy where it warrants to be, otherwise departure from Just desert principle results into injustice.Any attempt to down play the importance of retributive as vengeance concept is unfair. Retributive upholds and preserves the greater social values. Failure to satisfy the public sense of justice may lead to loss of respect for authority and human beings likely to take justice into their own hand that would be reverting the clock back to primitive society. CRITICISM Critics of retributive theory points out that punishment per se is not a remedy for the mischief committed by the offender. It merely aggravates the mischief. Punishment in itself evil and can be justified only on the ground that it yields better result. Revenge is wild justice. Retribution is only a subsidiary purpose served by punishment.
motive of committing crime. COMPENSATION therefore is of the essence of true deterrent, reformation and a necessary condition of retribution. Section of 357(1) of Criminal Procedure Code 1973 (CrPC) empowers court to grant amount to victim of the offence out of fine imposed as part of the sentence. Under section 357(3) of CrPC, court may nevertheless order accused person to pay a certain sum of compensation to victim where no fine is imposed as part of sentence. Compensation is payable to victim of the crime only when fine is not imposed as part of sentence which is unfair because amount of fine is meager compare to the compensation. Moreover, incurred expenses of prosecution are deducted from the fine and remaining amount is paid to victim of crime, therefore, victim gets small amount that would not amount to justice. Courts have generally restored to sentence of fine in addition to imprisonment but compensation provision is invoked seldom because power is discretionary. Further, there is injustice, when ordered payment of compensation is not complied by accused; there is no provision in law for imposing penalty for such non- compliance. On the other hand, non-payment of fine may lead to extension of period of imprisonment. The Supreme Court in SARWAN SINGH V****. STATE OF PUNJAB observed that if the accused is in a position to pay the compensation to the injured, there could be no reason for the court not directing such compensation. The Supreme Court in Delhi DOMESTIC WORKING WOMEN’S FORUM V****. UNION OF INDIA AND OTHERS , made remarkable direction to the National Commission for Women to draft scheme under which victim of rape would be given compensation even though accused is not convicted. The same should be sent to Union of India for its implementation within six months. Again, Supreme Court highlighted the pathetic conditions of victim of crime. In STATE OF GUJARAT AND ANOTHER V. HON’BLE HIGH COURT OF GUJARAT. Justice Thomas held that Restorative and reparative theories deserves serious consideration, victim of crime or his family members should be compensated from the wages earned in prison by the perpetrator. The court suggested the State to enact a comprehensive legislation in respect of compensation payable to victim of crime. Section 357 of CrPC has not proved to be much effective. Many persons who are sentenced to long-term imprisonment do not pay compensation and instead they choose to continue in jail in default thereof. Justice Wadhwa said, “Criminal justice would look hollow if justice is not done to the victim of the crime. A victim of crime cannot be “forgotten man” in the criminal justice system. It is he who has suffered the most. His family is ruined
particularly in case of death and other bodily injuries. An honor which is lost or life which is snuffed out cannot be recompensed but then compensation will at least provide some solace”. Time has come for legislator to act on these directions, enact comprehensive legislation and provide a security to victim of crime. In recent years, European and North American Nations have enacted legislations to protect the interest of crime victim. Law Commission of India said, “Victim is fortunate if he gets compensation or even his expenses” and observed that, “Reparation to the victim of an offence has been receiving increased attention in recent times. In part, this is due to a realization that mere punishment of the offender though it may exhaust the primary function of the criminal law, is not total fulfillment of the role of law”. It further recommended that Indian Penal Code should be amended by inserting compensation provision. Malimath Committee on reformation of criminal justice system said “system being heavily dependent on the victim, criminal justice has been concerned with the offender and his interest almost subordinate or disregarding the interest of victim”. It added that increased victim satisfaction would, in effect, enhance the efficiency of the Criminal Justice System. CRITICISM: Critics points out that it tends to oversimplify the motive to crime. F. EXPIATORY THEORY Expiatory theory of Punishment is based on morals. According to this theory repentance or expiation by offender itself is a punishment. If the offender expiates or repents, he must be forgive. Expiatory theory of punishment was prevalent in ancient Indian criminal law. Expiations were performed by way of uttering mantras, fasting or even burning oneself to death.
1973, the court has to record reasons for awarding death sentences that means life sentence is rule and death sentence is exception. In RAJENDRA PRASAD V****. STATE OF U.P ., Justice Krishna Iyer held that giving discretion to the judges to make choice between death sentence and life imprisonment on special reasons under section 354(3) CrPC would be voilative of Article 14 which condemns arbitrariness.80Nevertheless, the Supreme Court up held the Constitutional validity of death sentences in BACHAN SING V****. STATE OF PUNJAB , by saying it does not violate the Article 21 of the Constitution because the death sentence is an alternative and would be imposed in the most heinous crimes. The ratio of Bachan Sing case is not yet over ruled that is in accordance with The International Covenant of Civil and Political Rights 1966. Convention does not talk about the abolition of death sentences but only says that it should be imposed in most heinous crimes and not arbitrarily.Indian judiciary consistently observes these two conditions by holding that death sentences should be given in rarest of rare cases. The grey area is what constitutes rarest of rare is not defined but said it is a question of fact. In series of cases, the Supreme Court tried to lay down objective principles for determining the rarest of rare case but in fact they have became subjective principles in the hands of judges who decides rarest of rare cases. Some time the courts are unduly harsh while at other times they are liberal. Uniformity is lacking even in the case of rarest of rare cases while imposing death sentences. The Malimath Committee has also endorsed the view of retaining the death sentences because of new kinds of crime like terrorism, organized crime and drug trafficking which have threatened the security of society.84More reliance on deterrent theory would be at the risk of humanitarian. Death sentences in rarest of rare cases give more scope for reformation theory. Section 360 of CrPC gives a wide power to court to adopt lenient view in respect of young offenders. Punishment like rigorous or simple, forfeiture of property and fine are appropriate to use as the tool of reformative punishment. The Supreme Court in Narotam Sing v. State of Punjab has rightly said that reformative approach to punishment should be the object of criminal law, in order to promote rehabilitation without offending community conscience and to serve social justice. However, in M.H. Hoskot v. State of Maharashtra , Supreme Court cautioned the judiciary for showing more leniency to offenders based on reformative theory that would amount to injustice to the society. The offences like serious economic offences and other offences, the balance has to be maintained between the security of society and rights of offenders. In Dr Jacob George v. State of Kerala, the Supreme Court held that the object of
punishment should be deterrent, reformative, preventive, retributive and compensatory. Preferring one theory to other is not sound policy of punishment. Each theory of punishment should be used independently or combined according to the merit of the case. Human beings neither are angels capable of doing only good nor are they demons determined to destroy each other even at the cost of self- destruction. Taking human nature as it is, complete elimination of crime from the society is not only impossible but also unimaginable. Criminals are very much part of the society and society has to reform and correct them and make them sober citizens. Society has also to look from the point of victim. If victim relies that the State is reluctant to punish the offenders in the name of reform and correction, they may take law in their own hands, they themselves may try to punish their offenders and that will lead to anarchy. Bentham’s theory of penal objectives that pain of punishment of offender should be higher than the pleasure he enjoys by commission of crime. Nevertheless, this must have proportionality and uniformity too.
