Theories of Punishment: A Comprehensive Study for Law Students, Study Guides, Projects, Research of Criminal Law

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PROJECT: THEORIES OF PUNISHMENT

SUBMITTED BY:

HANIF MOHAMMAD MUSTAKIM

HADIQUA ISLAM

DEBANJAN SAHA

SUBMITTED TO: MS ARATRIKA

CHAKRABORTY

CLASS: LLB 1

BATCH 2021- 2024

TABLE OF CONTENT

• AKNOWLEDGEMENT CONTENT PAGE
• INTRODUCTION
• TYPES OF PUNISHMENT 5 -
• THEORIES OF PUNISHMENT-Retributive theory 7 -
• THEORIES OF PUNISHMENT-Deterrent Theory 11 -
• THEORIES OF PUNISHMENT-Incapacitation Theory
• THEORIES OF PUNISHMENT-Expiatory Theory 16 -
• THEORIES OF PUNISHMENT-Reformative Theory 19 -
• THEORIES OF PUNISHMENT- Utilitarian Theory 22 -
• CONCLUSION

INTRODUCTION

The stage of punishment is the final process of the criminal jurisprudence system. As is well- known, one of the fundamental tenets of criminal law is that a person is considered innocent until proved guilty. The nature of proof requires that the evidence must prove beyond reasonable doubt the guilt of the person accused of various offences. The method of proof is through conduct of trial. Once the court comes to a conclusion, based on evaluation of the evidence admitted before it, that the accusations are proved against the accused, it has to decide on the quantum of punishment to be awarded to the accused. The principles determining the nature and extent of punishment to be prescribed by the trial court are to be found in ch III, IPC, titled ‘Of Punishments’. The first set of provisions are from ss 53 to 60 providing for different types of punishments, which courts can award including death sentence, life imprisonment and imprisonment for other periods, whether the sentence should be served as rigorous or simple imprisonment and so on. These provisions also provide for commutation of the death sentence or life sentence in special circumstances by the State or Central Government concerned. Provisions relating to imposition of fines, including provisions for alternate sentences, if fines are not paid and so on; the related provisions are ss 63-70, IPC. Nature of punishment for offences made up of several offences as provided in ss 71 and 72, s73 and s 74 deals with solitary confinement and Enhanced punishment for certain offences in case of offenders who have been convicted previously in other cases as provided in s 75^1. 1 K I Vibhute, P S A Pillai’s Criminal Law, Gurgaon,Lexis Nexis, 14th edition, 308

TYPES OF PUNISHMENTS

(1) DEATH SENTENCE

Death sentence is the harshest of punishments provided in the IPC, which involves the judicial killing or taking the life of the accused as a form of punishment. The question of whether the state has the right to take the life of a person, howsoever gruesome the offence he may have committed, has always been a contested issue between moralists who feel that the death sentence is required as a deterrent measure (if for nothing else), and the progressives who argue that judicial taking of life is nothing else but court mandated murder.47 The IPC provides for capital punishment (imprisonment for life as an alternative punishment) for the following offences: (1) Treason, as in waging, attempting, or abetting war against the Government of India (s 121); (2) Abetment of mutiny (s 132); (3) Perjury resulting in the conviction and death of an innocent person (s 194, second paragraph); (4) Murder (s 302); (5) Abetment of a suicide by a minor or an insane person or an intoxicated person (305); (6) Attempted murder by a life convict, if hurt is caused (s 307, second paragraph); (7) Dacoity accompanied with murder (s 396). It is important to note that in the above-mentioned categories of offences, the death sentence only sets the upper limit of punishment. There is not a single offence in the IPC that is made punishable with mandatory sentence of death

(2) IMPRISONMENT FOR LIFE

section 53, secondly, of the Penal Code provides for imprisonment for life. Technically, imprisonment for life means a sentence of imprisonment running throughout the remaining period of a convict’s natural life. As regards the nature of imprisonment, it has been held to be rigorous imprisonment, and not simple imprisonment.

THEORIES OF PUNISHMENT Retributive Theory of punishment The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, 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 Lex talionis, which if translated, means ‘ an eye for an eye’. Now, if 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. 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:

1. that those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment;
2. that it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and
3. that 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. 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. Then 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 its seriousness. 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 scriptures.^2 Pros and Cons: Pros-

1. Acts as a strong deterrent.
2. Helps in giving moral justice to the victim.
3. Instils the feeling of trust within the society, towards the judiciary. Cons-
4. Sometimes, may become disproportionate with the seriousness of the crime.
5. Society develops feelings of vengeance and destructive tendencies follow.
6. The State may become autocratic in its functioning, using the punishment to torment people. **Case Laws:
7. Mukesh and Anrs. Vs NCT Delhi (Nirbhaya Case)(2017) 6 SCC 1** Facts: Nirbhaya is the pseudonym used for the rape victim of the infamous 16 December 2012 Delhi gang rape incident. The victims, a 23-year-old woman, Jyoti Singh, and her male friend, were returning home on the night of 16 December 2012 after watching the film Life of Pi in Saket, 2 Theories of punishment – a thorough study available at https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/

unanimous verdict, upheld the Delhi High Court judgement that had concurred with the trial court decision of the case. Mukesh, Pawan, Vinay Sharma and Akshay Kumar Singh were hanged till death for the brutality they had shown against a woman of the country. The bench awarded them the death sentence because their crime met rarest-of-rare threshold. After the incident, the fifth accused was not tried and he was sent to a correction home for three years because he was a minor at that time.

Deterrent Theory of punishment 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. That 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^3. 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.’ It is best expressed in the word of Burnett, J who said to a prisoner: “Thou art to be hanged not for having stolen a horse, but in order that other horses may not be stolen”. Through making the potential criminals realize that it doesn’t pay to commit a crime, the deterrent theory hopes to control the crime rate in the society The deterrent theory can be related to the sociological school of Jurisprudence. The sociological school creates a relationship between the society and law. It indicates law to be a social phenomenon, with a direct and/or indirect connection to society. One of the main aim of the deterrence is to establish an example for the individuals in the society by creating a fear of punishment. Now most important question is arrived at; “Who established this deterrent theory of punishment?” 3 Supra

• Celerity: The punishment for any crime must be swift in order to deter crime. The faster the punishment is awarded and imposed; it has more effect to deter crime. Therefore, deterrence theorists believed that if punishment is severe, certain and swift, then a rational person will measure the gain or loss before committing any crime and as a result the person will be deterred or stopped from violating the law, if the loss is greater than the gain. According to Austin’s theory, “Law is the command of the Sovereign”. In his imperative theory, he clearly declared three important things, which are as follows:

1. Sovereign.
2. Command.
3. Sanction. Austin’s question is that ‘Why do people follow the rule?’. He believes that people will follow the law because people have a fear of punishments. On the basis of his beliefs, we can see a small example over here: When people are biking, they wear a helmet as per biking rules. Now, we can assume that some people wear helmets genuinely to save themselves from road accidents but on the other hand, some people wear helmets because of escaping fines or in fear of cancellation of their biking licence. So, in that case, they know that if they bike rashly or disobey the biking rules they will be punished by giving huge a amount of fine or their biking licence will be cancelled. So here we can say that the purpose of the deterrent theory is successful and applied also. Now, if we go back a little earlier in time, in our Hindu Scriptures we also see that there were several punishments like public hanging, not only that but also people were immersed in hot oil or water. Most penal systems made use of deterrent theory as the basis of sentencing mechanism till early 19th century.

• In England, punishments were more severe and barbaric in nature to restrict same crime in the future. At the time of ‘Queen Elizabeth I’, deterrent theory of punishment was applied for restricting future crimes, even for too little crimes like ‘pickpocketing’.
• 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-

• Whether the death sentence to the culprits will act as a deterrent?
• Will the number of crimes against women in our society drop down permanently?
• Specifically, in Nirbhaya judgement, is the aim of deterrent theory fulfilled? 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. 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’.

Expiatory or Compensatory Theory of Punishment The theorists of this theory say that the object of the punishment is self-realization. If the offender, after committing an offence, realizes his guilt, then he must be forgiven. In other words: This theory relies on compensation to the victim for the loss caused by the accused. In this way, the offenders are made to realise the same sufferings they have caused to the victim. Example of the expiatory or compensatory theory of punishment: Sukant, who injured Bikash, undergoes imprisonment where he was made to work and sell his outcomes. The money earned is provided to Bikash to compensate for his treatment^4. It must be seen that the criminals should get proper judgement for their crimes so caused and the harassment caused to the victim and towards their family members and property. The victims in a crime can be compensated on mainly two grounds, namely-

1. A criminal who had inflicted an injury against the person (or group of persons), or the property must be compensated for the loss caused that has caused to the victim, and^5
2. The State that has failed to provide safety towards its citizens, must receive compensation for the loss caused^6. Compensation is the true essence of deterrent, reformative and a necessary contribution of retribution. Case Laws: 1. DK Basu v. State of West Bengal^7 4 8 KINDS AND THEORIES OF PUNISHMENT available athttps://www.writinglaw.com/5-theories-of-punishment/ 5 Theories of punishment – a thorough study available at https://blog.ipleaders.in/theories-of-punishment-a-thorough-study/ 6 Supra 7 AIR 1997SC 610

Facts: DK Basu, Executive Chairman of Legal Aid Services, West Bengal, a non-political organization on 26/08/1986 addressed a letter to the Supreme Court of India calling his attention to certain news published in the Telegraph Newspaper about deaths in police custody and custody. He requested that the letter be treated as a Writ Petition within the “Public Interest Litigation”. Considering the importance of the issues raised in the letter, it was treated as a written Petition and the Defendants were notified. While the writ petition was being considered, Mr. Ashok Kumar Johri addressed a letter to the Chief Justice of the Supreme Court calling his attention to the death of a Mahesh Bihari from Pilkhana, Aligarh in police custody. The same letter was also treated as a Request for Writing and was included along with D.K.Basu’s Request for Writing. On 14/08/1987 the Court issued the Order issuing notices to all state governments and a notice was also issued to the Law Commission requesting appropriate suggestions within a two-month period. In response to the notification, several states submitted affidavits, including West Bengal, Orissa, Assam, Himachal Pradesh, Haryana, Tamil Nadu, Meghalaya, Maharashtra, and Manipur. Additionally, Dr. A.M.Singh vi, Principal Counsel was appointed Amicus Curiae to assist the Court. All of the attorneys who appeared provided useful assistance to the Court. Issues:

• Growth in incidents of Custodial Torture and Deaths by Police.
• The arbitrariness of Policemen in arresting a person.
• Is there any need to specify some guidelines to make an arrest? Contentions of Respondent: The Counsel representing different states and Dr. AM Singhvi presented the case and stated that “everything was fine” within their respective States, presented their respective beliefs and provided useful assistance to this Court to examine various facets of the problem and made sure that suggestions for the formulation of guidelines by this court to reduce, if not prevent, violence in custody and the relatives of those who die in custody due to torture. Judgment:

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 jail. History of the Theory: The human development has consistently been administered under the standard of an incomparable force. The job and type of pre-eminent force has changed throughout a long term. Beginning from the primitive type of Government to the present just, republican and different types of Governments, the obligation of the incomparable authority has changed a lot. The idea of discipline has additionally changed like the idea of State duty throughout the long term. The idea of discipline relied upon the premise of religion and the organization of the Kings. During old occasions, the idea of discipline was retributive premise, where the hoodlums were given uncouth type of discipline. Afterward, over the entry of ages, the significance of common liberties expanded which in essence cleared path for the replacement of Retributive hypothesis by Reformatory and Rehabilitative hypotheses. Under the Reformative and Rehabilitative hypotheses, the blamed are given such structures for discipline which would change them and keep them from perpetrating such wrongdoings. The theory of punishment being followed in India with the goal to change the crooks as opposed to rebuffing them isn’t that compelling in avoidance of the event of violations in

India. The essential idea of law isn’t to be static, but to be dynamic in nature. At exactly that point the law will have the option to be successful in all fields of the general public. The Main Purpose Reformative Theory: 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. The 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. Criticism: Reformative theory anticipates better framework and offices in jail, legitimate co- appointment between various control and diligent exertion on their part to shape criminals. It requires gigantic ventures which poor nation can’t bear the cost of. A great many guiltless individuals who have high respects for law are finding hard to get fundamental courtesies hypothesizes moral avocation for giving better offices inside jail. Also, the soundness of the hypothesis is more towards motivators for the commission of wrongdoing instead of counteraction.