8 Theories of Punishment
Kinds and theories of punishment.

What Is Punishment?

Punishment is the penalty on someone as a result of their wrongdoing.

Crime is against society. Police aid in preventing the crime by arresting the criminals and forwarding them to court, where they are punished according to the law. The result of crime is punishment. The main aim of punishment is to reform the criminals and convert them into good Samaritans (a person who voluntarily offers help or sympathy in times of trouble) and law-abiding citizens. According to research, there are several theories of punishment. Let us see the essential ones.

There are eight important kinds or theories of punishment. They are:

Bare Act PDFs

Let us learn more about all these eight theories of punishment.

1. Deterrent Theory of Punishment

The word ‘deter’ means to prevent. Here, deterrent theory refers to refraining from doing a particular act. The main goal behind using this theory is to restrain criminals from committing a crime. In such theories, punishments awarded are severe in nature which creates a fear not only in the criminal’s mind but also in the mind of others. This theory is still prevalent in some Islamic countries.

In other words: The object of this theory is not only to prevent the wrongdoer from doing a wrong subsequently but also to make him an example for society and other people who have criminal tendencies.

Locke is the supporter of the deterrent theory and said that “every commissioner of crime should be made a ‘bad bargain’ for the offenders.”

Drawbacks of the Deterrent Theory of Punishment

  1. Punishment fails to create fear in the mind of criminals once the punishment is over.
  2. This type of punishment fails to create fear in the mind of hardened criminals.
  3. Arouses sympathy in the mind of the public for criminals.

Example of the deterrent theory of punishment: Post Nirbhaya judgment, still rape cases are on the rise.

2. Retributive Theory of Punishment

The word ‘retribute means to give in return the same thing that has been received. To payback. It is also known as Vengeance Theory. It is based on the principle – tit for tat. This theory is against the principle of Mahatma Gandhi.

There was a belief that if the offender is subjected to the same torture as he had done to the victim, then it makes the offender realise what he has done.

In other words: This theory proposes tit for tat, eye for an eye, tooth for a tooth. The punishment has to be proportional to the crime committed. The believers of this theory say that criminals must suffer pain. Retributive theory is the most ancient theory of justice.

Drawbacks of the Retributive Theory of Punishment

  1. It exasperates (irritate and frustrate intensely) the offender.
  2. There is no relief for the offence committed by the offender.
  3. This type of punishment reflects the wild character of justice.
  4. Punishment may not be revengeful always.

Example of the retributive theory of punishment: Rape in return for rape may not be a punishment for the offender.

3. Preventive Theory of Punishment

The main aim of this theory is to prevent crime. When the criminals are kept in jails, they are kept out of society. The object of this theory is to prevent or disable the offenders from repeating the offence by giving them punishment. A supporter of preventive theory is Paton.

Examples of the preventive theory of punishment include death, life imprisonment, forfeiture of property etc.

Drawbacks of the Preventive Theory of Punishment

  1. Fails to fulfil the aim of juvenile offenders and offenders who have committed the offence for the first time.

Case Law: Dr Jacob vs the State of Kerala: The apex court stated that punishment should be deterrent, retributive, preventive, expiatory, compensatory, incapacitation and utilitarian theory. Preference for one theory over the other is not a good policy to award punishment.

4. Reformative Theory of Punishment

This theory focuses on reforming the criminals and bringing the criminals back to society as good and law-abiding citizens. This is based on the Gandhian principle: Hate the sin, not the sinner.

This theory was successful to some extent in the case of juveniles. Some work or craftsmanship is imposed on the offender during his period of confinement with the aim that he will start a new life after his punishment is over.

Example of the reformative theory of punishment: Ankit, a prisoner, has learned pottery during his stay in jail. After his release from jail, he started a pottery business, earned his livelihood and lived happily.

Drawbacks of the Reformative Theory of Punishment

  1. If this theory is applied to criminals, the prison will no more remain as a prison rather become a dwelling house.
  2. This theory fails to meet its objective on criminals who are habitual offenders.
  3. If a good citizen is punished for what he has not done, this theory may have adverse effects.

5. 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.

Drawbacks of the Expiatory or Compensatory Theory of Punishment

  1. Oversimplification of the motive of the crime.
  2. Too idealistic
  3. Too impracticable in modern society.

Case Laws:

1. DK Vasu vs State of West Bengal: A victim who is guaranteed fundamental rights of the Constitution must be compensated as he is guaranteed the right to personal life and liberty under Article 21 by the Constitution, which was violated by the officer of the State.

2. State of Gujarat vs High Court of Gujarat: The court has raised serious concerns where the victim is paid from the daily wages that are earned by the criminal during his confinement and demanded comprehensive legislation for the same.

6. Incapacitation Theory of Punishment

This theory puts the criminals into the state of being incapacitated to prevent the offence. A fear also grows in the mind of the criminals and future generations before attempting to commit future crimes, thus preventing it.

Incapacitated means deprived of strength or power.

Example of the incapacitation theory of punishment: Capital punishments and life imprisonment.

According to a report by Chicago University, such a theory succeeded in eliminating twenty per cent of the crime.

7. Utilitarian Theory of Punishment

This theory applies discouraging methods on criminals to prevent crimes such as crippling or disablement, etc. This theory provides both affirmative and negative results. Such punishments are considered to be very harsh in nature.

Example of the utilitarian theory of punishment: Death penalty for murder convict.

8. Multiple Approach Theory

If a single theory fails to meet the objective, then a combination of theories is the choice. Hence the court should make a judicious approach while selecting theories of punishments.

Conclusion

The very purpose of awarding punishment is to avoid crime in society. The root cause of crime must be found and addressed to reduce the crime in society, with some of the root causes being unemployment, education etc.

Some heinous crimes like rape, murder etc., where punishment cannot fulfil the damage caused, in such cases, the victims must be awarded compensation with fair and speedy justice. The court should think from every aspect while awarding punishment because a hundred accused may go off, but an innocent should not be punished.

Student’s Query: In India, what justice do we follow – retributive justice or restorative?

Answer: In India, we follow and emphasise the reformative theory of justice or restorative. We believe in solving the crime than a criminal. It is the intention of committing a crime that needs to be separated from a criminal. If we can change a person’s mindset by ways and means, then that will be the true victory of preventing crime.

ABOUT OUR AUTHOR
Author Amit Das WritingLaw
This article is written by Amit Kumar Das, B.Tech, LLB. He is a practising advocate from Odisha High Court & Puri District Courts.
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