Aviral Umrao, Research Associate
The object of punishment has been very well summarised by Manu, the great Hindu law giver, in following words: punishment governs all mankind; punishment alone preserves them, punishment wakes while their guards are asleep; the wise considers the punishment (danda) as perfection of justice ((Institute of hindu law(translated by Haughton,G.C. 1835) ch.7, para 18 p. 189)). The general view that the researcher finds is that the researcher gathers is that the theories of punishment being so vague are difficult to discuss as such. In the words of Sir John Salmond, “The ends of criminal justice are four in number, and in respect to the purposes served by the punishment can be divided as ((PSA Pillai’s criminal law, tenth edition, 2008)):
- Deterrent theory
- Retributive theory
- Preventive theory
- Reformative theory
- Expiation theory
Of these aspects the first is the essential and the all-important one, the others being merely accessory. Punishment before all things is deterrent, and the chief end of the law of crime is to make the evil-doer an example and a warning to all that are like-minded with him.
The object of punishment is not only to prevent the wrong-doer from doing a wrong a second time, but also to make him an example to other persons who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for control of crime ((Salmond on jurisprudence 12th ed.,(1966) pp. 94-100)). The chief aim of the law of crime is to make the evil-doer an example and a warning to all that are like minded. One of the primitive methods of punishments believes in the fact that if severe punishments were inflicted on the offender would deter him form repeating that crime. Those who commit a crime, it is assumed, derive a mental satisfaction or a feeling of enjoyment in the act. To neutralize this inclination of the mind, punishment inflicts equal quantum of suffering on the offender so that it is no longer attractive for him to carry out such committal of crimes. Pleasure and pain are two physical feelings or sensation that nature has provided to mankind, to enable him to do certain things or to desist from certain things, or to undo wrong things previously done by him. The basic idea of deterrence is to deter both offenders and others from committing a similar offence. But also in Bentham’s theory was the idea that punishment would also provide an opportunity for reform ((OP Srivastava’s Principles of Criminal Law, EBC, fifth edition, 2010)).
In earlier days a criminal act was considered to be due to the influence of some evil spirit on the offender for which he was unwillingly was made to do that wrong. Thus to correct that offender the society retorted to severe deterrent policies and forms of the government as this wrongful act was take as an challenge to the God and the religion.
But in spite of all these efforts there are some lacunae in this theory. This theory is unable to deter the activity of the hardcore criminals as the pain inflicted or even the penalties are ineffective. The most mockery of this theory can be seen when the criminals return to the prisons soon after their release, that is precisely because as this theory is based on certain restrictions, these criminals are not effected at all by these restrictions rather they tend to enjoy these restrictions more than they enjoy their freedom.
The person wrongdoer was allowed to have revenge against the wrong doer. The principle of an eye to eye, a tooth to tooth, a nail to nail, limb for limb was basis of criminal administration ((Shiv ram v. state of U.P, AIR 1998 SC 49)).
“An eye for an eye would turn the whole world blind” – Mahatma Gandhi.
The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This theory underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the offender provides some kind solace to the victim or to the family members of the victim of the crime, who has suffered out of the action of the offender and prevents reprisals from them to the offender or his family. This theory is based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely both these theories involve the exercise of control over the emotional instinctual forces that condition such actions. This includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive outbursts. Thus the researcher concludes that this theory closely related to that of expiation as the pain inflicted compensates for the pleasure derived by the offender. Though not in anymore contention in the modern arena but its significance cannot be totally ruled out as fear still plays an important role in the minds of various first time offenders. But the researcher feels that the basis of this theory i.e. vengeance is not expected in a civilized society. This theory has been severely criticized by modern day penologists and is redundant in the present punishments.
Object of punishment is prevention or disablement offenders are disabled from repeating the offences by awarding punishment, such as death, exile or forfeiture of an office. Unlike the former theories, this theory aims to prevent the crime rather than avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements ((Ratan Lal Dhiraj Lal: Indian Penal Code Hindi (2 Vols): thirty first edition, 2008)).
Thus one an easily say that preventive theory though aiming at preventing the crime to happen in the future but it still has some aspects which are questioned by the penologists as it contains in its techniques which are quite harsh in nature. The major problem with these type of theories is that they make the criminal more violent rather than changing him to a better individual. The last theory of punishment being the most humane of all looks into this aspect.
According to the reformative theory, the objective of punishment is the reformation of criminals. But that is the beginning of a new story, the story of the gradual Renewal of a man, the story of his gradual regeneration, of his Passing from one world into another, of his initiation into a new Unknown life. It emphasizes on the renewal of the criminal and the beginning of a new life for him.
The most recent and the most humane of all theories is based on the principle of reforming the legal offenders through individual treatment. Not looking to criminals as inhuman this theory puts forward the changing nature of the modern society where it presently looks into the fact that all other theories have failed to put forward any such stable theory, which would prevent the occurrence of further crimes. Though it may be true that there has been a greater onset of crimes today than it was earlier, but it may also be argued that many of the criminals are also getting reformed and leading a law-abiding life all-together. Reformative techniques are much close to the deterrent techniques ((PSA Pillai’s criminal law, tenth edition, 2008)).
This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix up with the other members of the community.
Expiation Theory states that compensation is awarded to the victim from the wrong-doer, awarding compensation from the accused, accused is not physically punished. He is economically punished, and such compensation is awarded to the victim or victim’s family members. This also becomes a lesson to the remaining public. Purpose of this theory is generally, in other system of punishment, the victim is not taken into consideration. The present criminal justice system concentrates only on punishing the criminal. The Courts are not in position to point out the grievance of the victim or his family members.
In case of State vs. Sayyaduddin ((1996 HC 345 AP)), Justice Motilal Naik observed: “By imposing imprisonment on the accused could not be helpful to the family members of the victim. In my opinion, it is better to help the victim’s family members, as there is no one to look after them after the death of the bread-earner.
The victim or his family members satisfy with the money and can lead their remaining life safely. It also creates repentance in the minds of the criminals. Modern criminologists, jurists, penologists, jurisprudents, sociologists, etc. support the idea of victimology and expiation theory.
Current position and Problems: (Authors view)
One of the major problem which comes out in counter of deterrent theory, is that as one of the major function of the criminal administration is for sending a message to society or like mind people by the conviction of a criminal in order to make them aware that same will happen to them also in case same criminal act will be performed by them in similar situation or different situation.
But looking it to current system of judicial administration for criminal case, judiciary is not meeting the expectation of deterrent as due to backlog of case, sometime even trial court took more than 3-4 years for its completion of trial proceedings. And this happens in most of the cases and then appeal for it and sometime further appeal and mercy petition is also in the same row.
Let us take an example, if some person kills a man in a cross road and most of people present at that time watched the same, and handed over the convict to police and proceedings started against it took almost 2-3 years and mean while people forgot the happening and continued with their daily affairs and later only family of convict and accused have concern with it and this process in most of the cases took around 10 to 15 years and then there is no such strong message which goes to society as most of them forgot about it an new generation is not aware of all that event at all then what’s the use of such system if it is not fulfilling the major role of it. What we can do any in order to make this theory work as per as its meaning, making judicial system work with the concept of speedy trial. One of the good examples of such case is that of Rajiv Gandhi assassination case.
Secondly, important problem is with the preventive theory of punishment as this theory is prevention or disablement offenders are disabled from repeating the offences by awarding punishment, such as death, exile or forfeiture of an office. Unlike the former theories, this theory aims to prevent the crime rather then avenging it. Looking at punishments from a more humane perspective it rests on the fact that the need of a punishment for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus protecting the society from any anti-social elements.
This theory is fine till this limit but what is happening now a day’s concept of capital punishment is developing sometimes it prevails and some time it does not( as precedents are not followed). If this system of capital punishment will followed then objective of preventive theory will not be obtained as convicts of capital punishment will not be given with chance to come in to mainstream and no chance to improve themselves. According to me capital punishment should be abolished. Everyone have equal right to live in this world and country like India gives freedom to live in its constitution should never go for capital punishment. So if the person does any criminal activities and may be that it may be heinous but is giving death penalty is the only solution to curb out the crime from the country. And if death penalty is awarded to any murderer then what is the difference between that murderer and the judge except for that that judge has been given the right to award death penalty and the murderer has been not.
I don’t think that giving death sentence is right because up to what extent we will be doing this. We need to remove the crime first; other thing will be done automatically.