CRIMINOLOGY

“ THEORIES OF PUNISHMENT”

Submitted to:
Submitted by:
Ms.Neda Soumya
Singh
Vth Semester
Faculty of Law
JAMIA MILLIA
ISLAMIA
1|Page
 INDEX
1. ACKNOWLEDGEMENT …3
2. AIMS AND OBJECTIVES OF PUNISHMENT …4
3. BACKGROUND …6
4. THEORIES OF PUNISHMENT …8
5. DETERRENT THEORY …9
6. RETRIBUTIVE THEORY …10
7. PREVENTIVE THEORY …11
8. REFORMATIVE THEORY …12
9. PUNISHMENT UNDER CODE …14
10. NEW FORMS OF PUNISHMENT
…18
11. DEATH PENALTY UNDER PENAL CODE
…21
12. CONCLUSION
…23
13. BIBLIOGRAPHY
…24

ACKNOWLEDGEMENT
2|Page
 It is my imperative duty to thank the following people for the
successful completion of my work on the project topic “
THEORIES OF PUNISHMENT”.

• Ms. Neda for the clarity she brings into teaching thus
enabling us to have a better understanding of his subject. I
also feel obliged to thank her for providing us with such wide
range of topics to choose from.

• My resourceful classmates, whom I ran into the library, thus

un expectedly starting and successfully completing a rough
handwritten draft of this project.

• The very cooperative and friendly staff members in the

Central and Law Library as well as our Faculty’s Library
who were instrumental and suggestive in our finding the
necessary books without wasting much time

Aims and Objective of Punishment:

Criminal law reflects those fundamental social values expressing the way
people live and interact with each other in the society. It uses the ‘stick’ of
punishment as a mean of reinforcing those values and securing compliance
therewith. In this way criminal law seeks to protect not to individual, but also
3|Page
the very structure and fabric of society from undesirable, nefarious and
notorious activities and behaviour of such individuals and organizations who try
to disrupt and disturb public peace, tranquillity and harmony in the society1. The
object of criminal legislation is to prevent the perpetration of acts classified as
criminal because they are regarded as being socially damaging. The
transgression of such harmful acts in modern times is prevented by a threat or
sanction imposed on an accused for the infringement of the established rules
and norms of society.
The object of punishment is to protect society from mischievous and
undesirable elements by deterring potential offenders, by preventing the actual
offenders from committing further crimes and reforming and truing them into
law abiding citizens. It is also asserted that respect for law grows largely out of
opposition to those who violate the law. The public dislikes a criminal and this
dislike is expressed in the form of punishment. The object of punishment has
been very well summarised by Manu, the great Hindu Law-giver in the
following words:
Punishments governs all mankind; punishment alones preserve them;
punishment wakes while guards are asleep; the wise consider the punishment
(danda) as the perfection of justice2.
The protection of society and security of person’s life, liberty and property is an
essential function of the state. This could be achieved through instrumentality of
criminal law by imposing appropriate sentence and stamping out criminal
proclivity (tendency). Law as a cornerstone of the edifice of ‘order’ should meet
the challenges confronting the society3. As stated by Friedman in his book ‘Law
in Changing Society’:
“State of Criminal law continues to be-as it should be-a decisive reflection of
1 C.M.V Clarkson understanding criminal law, William Collins, 1987, pp. 166-168
2 Institute of Hindu law Ch. 7, para 18, p 189.
3 State of Madhya Pradesh v. Munna Choubey, AIR 2005 SC 682.

4|Page
social conscious of society”
In operating the sentencing system, law should adopt the corrective machinery
or the deterrence based on factual matrix; sentencing process is stern where it
should be, and tempered with mercy where it warrants to be.

The concept of punishment — its definition — and its practical application and
justification during the past half-century have shown a marked drift away from
efforts to reform and rehabilitate offenders in favor of retribution and
incarceration. Punishment in its very conception is now acknowledged to be an
inherently retributive practice, whatever may be the further role of retribution as
a (or the) justification or goal of punishment. A liberal justification of
punishment would proceed by showing that society needs the threat and the
practice of punishment, because the goal of social order cannot be achieved
otherwise and because it is unfair to expect victims of criminal aggression to
bear the cost of their victimization. Constraints on the use of threatened
punishments (such as due process of law) are of course necessary, given the
ways in which authority and power can be abused. Such a justification involves
both deontological as well as consequentialist considerations.

Background
Philosophical reflection on punishment has helped cause, and is itself partially
an effect of, developments in the understanding of punishment that have taken
place outside the academy in the real world of political life. A generation ago
sociologists, criminologists, and penologists became disenchanted with the
rehabilitative effects (as measured by reductions in offender recidivism) of
programs conducted in prisons aimed at this end (Martinson 1974). This
disenchantment led to skepticism about the feasibility of the very aim of
5|Page
rehabilitation within the framework of existing penal philosophy. To these were
added skepticism over the deterrent effects of punishment (whether special,
aimed at the offender, or general, aimed at the public) and as an effective goal to
pursue in punishment. That left, apparently, only two possible rational aims to
pursue in the practice of punishment under law: Social defense through
incarceration, and retributivism. Public policy advocates insisted that the best
thing to do with convicted offenders was to imprison them, in the belief that the
most economical way to reduce crime was to incapacitate known recidivists via
incarceration, or even death (Wilson 1975). Whatever else may be true, this aim
at least has been achieved on a breathtaking scale, as the enormous growth in
the number of state and federal prisoners in the United States (some 2.1 million
in year 2005, including over 3,700 on “death row”) attests.

At the same time that enthusiasm for incarceration and incapacitation was
growing as the preferred methods of punishment, dissatisfaction with the
indeterminate prison sentence — crucial to any rehabilitative scheme because of
the discretion it grants to penal officials — on grounds of fairness led policy
analysts to search for another approach. Fairness in sentencing seemed most
likely to be achievable if a criminal sentence was of a determinate rather than
indeterminate duration (Allen 1981). But even determinate sentencing would
not be fair unless the sentences so authorized were the punishments that
convicted offenders deserved. Thus was born the doctrine of “just deserts” in
sentencing, which effectively combined the two ideas.[1] By this route the goals
of incapacitation and retribution came to dominate, and in some quarters
completely supersede, the goals of rehabilitation and deterrence in the minds of
politicians and social theorists.

6|Page
Theories Of Punishment:
With change in the social structure the society has witnessed various
punishment theories and the radical changes that they have undergone from the
traditional to the modern level and the crucial problems relating to them. Kenny
wrote: "it cannot be said that the theories of criminal punishment current
amongst our judges and legislators have assumed...."either a coherent or even a
stable form. B.Malinowski believes all the legally effective
institutions....are....means of cutting short an illegal or intolerable state of
affairs, of restoring the equilibrium in the social life and of giving the vent to he

7|Page
feelings of oppression and injustice felt by the individuals.

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 them punishment can be divided as:
1. Deterrent
2. Retributive
3. Preventive
4. Reformative
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.

Deterrent Theory:
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. It is like providing both a powerful
8|Page
engine and an equally powerful brake in the automobile. Impelled by taste and
good appetite, which are feelings of pleasure a man over-eats. Gluttony and
surfeit make him obese and he starts suffering disease. This causes pain. He
consults a doctor and thereafter starts dieting . Thus the person before eating in
the same way would think twice and may not at all take that food. In social life
punishment introduces the element of 'pain' to correct the excess action of a
person carried out by the impulse (pleasure) of his mind. We all like very much
to seize opportunities, but abhor when we face threats. But in reality pain, threat
or challenges actually strengthens and purifies a man and so an organization

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.

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.

Retributive Theory:
...An eye for an eye would turn the whole world blind- Mahatma Gandhi

9|Page
retributive punishment, in the only sense in which it is admissible in any
rational system of administering justice, is that which serves for the satisfaction
of that emotion of retributive indignation which in all healthy communities is
strived up by injustice. This was formerly based on theory of revenge.-“tooth
for tooth” and “eye for eye”.
Today, on the other hand, this theory is based on the idea that punishment is the
necessary alkali to neutralize the evil effects of crime. The idea behind the
retributive punishment is that of the restoration of the moral character, the
appraisement of the disturbed conscience of society itself and the maintenance
of the sovereign power of the state which becomes aggrieved when a crime is
committed and inflicts punishment to set matters of right. Though the system of
private revenge has been suppressed, the instincts and emotion that lay at the
root of these feelings are yet present in human nature. Therefore, according to
this moral satisfaction that the society obtains from punishment can not be
ignored.
On the other hand, if the criminal is treated very leniently or even in the midst
of luxury, as the reformative theory would have it, the spirit of vengeance would
not be satisfied and it might find its way through private vengeance. According
to this theory eye for eye and tooth for tooth is deemed to be a complete and
really sufficient rule of natural justice.
In the last, we can easily say that the only logical inference from the reformative
theory, if taken itself, is that they should be abandoned in despairs as no fit

subject for penal discipline. The deterrent and disabling theories on the other
hand, regard such offenders as being pre-eminently those with whom the
criminal law is called upon to deal.
The application of purely reformative theory, therefore would lead to
astonishing and inadmissible results. The perfect idea of criminal justice is
based on neither reformative nor the deterrent principle exclusively, but the

10 | P a g e
result of comprise between them.
In this it is the deterrent principal which possesses predominant influence. It
will not be out of place to mention here that Gandhi ji “hate the sin and not the
sinner”, is merely a philosophical assertion and cannot furnish a practical guide
in the administration of justice

Preventive Theory:
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.

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.

Reformative Theory:
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.

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
11 | P a g e
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.

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. The reformation generally takes place
either through probation or parole as measures for reforming criminals. It looks
at the seclusion of the criminals from the society as an attempt to reform them
and to prevent the person from social ostracism. Though this theory works
stupendously for the correction of juveniles and first time criminals, but in the
case of hardened criminals this theory may not work with the effectiveness. In
these cases come the importance of the deterrence theories and the retributive
theories. Thus each of these four theories have their own pros and cons and each
being important in it, none can be ignored as such.

12 | P a g e
 Punishment under Code:
The Penal Code in section 53 to 75 has provided for a graded system of
punishment to suit the different categories of offences for which the offenders
are accountable under it. The criminal law adheres in general to the culpability
of each kind of criminal conduct. It ordinarily allows some significant discretion
to the Judge in arriving at a sentence in each case, presumably to permit
sentences that reflects more subtle consideration of culpability that are raised by
the special facts of each case. Judges in essence affirm that punishment ought
always to fit the crime: yet in practise sentences are determined largely by other
consideration, sometimes, it is the correction needs of the perpetrator that are
offered to justify a sentences, sometimes even the tragic results of his crime.
Section 53 prescribes five types of punishments4 to be meted out to a person
convicted of a crime under the Code, depending on the nature and gravity of the
offence, viz:
i. Death,
ii. Imprisonment for life,
iii. Imprisonment, rigorous with hard labour,
iv. Forfeiture of property;
4 IPC (Amendment) Bill, 1978

13 | P a g e
 v. Fine

(1) Death Penalty

It is the most grave penalty imposed by IPC. Many sections still prescribe the
punishment of death. Some of them are as follows:
(a) Offence under Section 194 IPC where a person gives false evidence with
intention to cause any person to be convicted of capital punishment and if an
innocent person is convicted and executed in consequence of such false
evidence, the person who gives such false evidence shall be punished with death
or life imprisonment or rigorous imprisonment and fine.
(b) Offence of murder for which punishment of death or imprisonment of life is
prescribed under Section 302.
(c) Offence of murder committed by life convict as described in Section 303.
This section has been held unconstitutional by the Supreme Court in Mithu v.
State of Punjab[AIR 1983 SC 473]. The peculiarity of this Section is that
punishment of death only is provided. No other alternative punishment is seen
provided.
(d) Offence of abetting suicide of child or insane person as mentioned in
Section 305 IPC where death is a punishment with other alternative
punishments.
(e) In Section 307 when a life convict attempts to murder and hurt is caused
Death Sentence may be imposed.
(f) Kidnapping for ransom as described under Section 364A may be met with
punishment of Death alongwith other alternative punishments.

14 | P a g e
(g) If any one of five or more person s who are conjointly committing dacoity,
commits murder in so committing dacoity, every one of those persons shall be
punished with death along with other alternative punishments.
In Bachan Singh v. State of Punjab[AIR 1980 SC 898] hon'ble Supreme
Court of India held that death sentence is to be given only in rarest of rare cases.

(2) Life Imprisonment

Living behind the bars are sometimes far more painful than death sentence. It is
the most popular type of sentence after death penalty. In most serious offences
this type of punishment is prescribed. Wherever death penalty is prescribed, life
imprisonment also finds a place as an alternative punishment. As there is hue
and cry regarding imposing of death penalty, in appropriate cases Courts impose
life imprisonment as a safe method. Some sections which impose Life
Imprisonment as a penalty are : Sections 194, 255, 304, 304(B), 305, 307, 311,
313, 314, 326, 329, 364, 364(A), 376, 377, 394, 395, 396, 400, 409, 412, 413,
436, 449, 459, 460, 467, 472, 477, 489A, 489B, 489D and 511.

(3) Imprisonment both rigorous and simple.

Rigorous imprisonment is of such type where the convict will have to do hard
labour. In many offences the period of imprisonment varies. In simple
imprisonment also the term of imprisonment varies according to offences.

(4) Forfeiture of Property

Forfeiture of property is not very common in IPC. Section 61 which specified
sentence of forfeiture of property has been repealed by Indian Penal Code
(Amendment) Act, 1921. In the present IPC three sections viz 126, 127 and 129
describes forfeiture of property.

15 | P a g e
(5) Fine
IPC prescribes fine as a penalty both independent and along with other
penalties. The amount of fine varies with offences. Section 63 says that where
no sum is expressed to which a fine may extend, the amount of fine to which the
offender is liable is unlimited, but shall not be excessive. Sentence for non-
payment of fine is also dealt with in IPC[Sec.64].
Thus there are various penalties as discussed above which are imposed
differently in different offences. The term, nature, amount etc varies in each
cases and offences and also according to Courts. Although all types of
punishments like retributive, reformative, preventive, deterrent are provided in
IPC it is stated that reformative approach to punishment should be the object of
criminal law.[AIR 1978 SC 1542]

Whipping:
The corporal punishment of whipping, added in the Indian Penal Code by the
Wiping Act of 1864 as punishment for certain crimes, was abolished in 1955 in
view of the inhuman and cruel nature of the sentence. Such a punishment was
considered a barbarous act, a stain on civilization and a blot on the statute book.

16 | P a g e
New Forms of Punishment:
It is suggested to add five new forms of punishment to the existing ones in the
section 53, IPC with a view to deter particular types of criminals. Such
punishments will have more psychological, social and moral impact on the
criminals and will go a long way in curbing crimes. The proposed punishments
are:
i. Externment,
ii. Compensation,
iii. Public Censure,
iv. Community service,
v. Disqualification from holding public office.

Externment:
Exrternment or banishment is a form of punishment in which an accused is sent
out of the place of his abode to another place for a specified period of time as
mentioned in the order issued by the court. This is done to deprive the accused
of the company of his family, friends and associates so that he or she may not
indulge in criminal activities. For instance, Bombay Police Act, 1951, Delhi
Police Act, 1964, C.P Gonda Act 1949 and some other states have provided for
such type of punishment to deal with hardened criminals effectively in their
jurisdiction and ensuring adequate procedural safeguard5.

Compensation:
Unfortunately, victims of the crime in our society do not attract the attention of
the lawmakers. Criminal Procedure Code 1973 in section 357 has empowered

5 N.B khare v. State of Delhi, AIR 1950; Hari v. Dy Commissioner of Police, AIR 1956;
Gurbachan Singh v. State of Bombay, AIR 1952; Prem Chand v. Union of India, AIR 1981.

17 | P a g e
the court to award compensation to the victims of crime in very limited cases at
the time of delivering judgement. For instance the power to award
compensation to the victims under sub section (1) of section 357 of Cr PC is
confined to only those cases where the court imposes a fine and that amount is
limited to the fine only. And sub-section (3) of section 357 says compensation
can be awarded only if a sentence of fine is not imposed. The apex court in
Sarwan Singh v. State of Punjab6 recommend to all courts to exercise the power
to grant compensation and said that, “This power of court to award
compensation is not ancillary to others sentences, but it is in addition thereto.”
It is therefore suggested that compensation or reparation to the victims of crime
be included as a form of punishment under section 53 of IPC.

Public Censure:
Public Censure or social censure is one of the methods of punishment
prescribed in some of the countries like Russia, Columbia in respect of certain
offences of anti-social in nature, while white collar crimes, tax crimes, food
adulteration, etc. The law Commission of India in 42nd report on Indian Penal
Code has suggested ‘Public censure’ as one of the modes of punishment in
respect of certain class of offences prescribed under Indian Penal Code.

Community service:
Community service or corrective labour is a form of punishment in which the
convict is not deprived of his liberty. A corrective labour is served either at the
place of accused’s ordinary work place., or in a special corrective labour
institution in the locality where the accused is domiciled. The accused is paid
emoluments for the work after adjusting a part of the amount towards

6 AIR 1987 SC 1525

18 | P a g e
establishments and maintenance cost, etc.

Disqualification from holding Public office:

Disqualification to hold public office and to contest election as a form of
punishment will have adequate and desired deterrent sanction, if sincerely
implemented. The apex court on 13th March, 2003 delivered a laudable verdict
making mandatory for candidates seeking election to disclose their criminal
antecedents, assets and liabilities with educational qualification in the
nomination paper7.

Death Penalty under Penal Code:

The sentence for death is the most extreme punishment provided under the Code
in eight cases. Regarding ‘Death’ as a punishment, the authors of the code have
categorically stated that it ought to be very sparingly inflicted in exceptional
cases where either murder or the highest offence against the state has been
committed. Death sentence under the Code to which offenders may be
sentenced are:
i. Waging or attempting to wage war or abetting waging war against the
Government of India. (Section 121).
ii. Abetting mutiny actually committed (section 132).
iii. Giving or fabricating false evidence upon which an innocent person

7 Times of India March 14, pg 1

19 | P a g e
 suffers death (section 194).
iv. Murder which may be punished with death or life imprisonment (section
302).
v. Abetment of suicide of a minor, or insane, or intoxicated person (section
305).
vi. Attempt to murder by a person under sentence of imprisonment for life, if
hurt is caused (section 307).
vii. Kidnapping for ransom, etc. (section 364A).
viii. Dacoity accompanied with murder (section 369).

Death Penalty under laws other than Penal Code:

Besides the Penal Code Death sentence may be awarded under the following:
1. The Indian Air force Act, 1950,
2. The Army Act 1950,
3. The Navy Act 1950,
4. The National Security Guards Act, 1986,
5. The Commission of Sati Act, 1987,
6. The Narcotics Drugs and Psychotropic Substance Act, 1985,
7. The Schedule Castes and Scheduled Tribe (prevention) Act, 1989.

20 | P a g e
 Conclusion
Punishment is the authoritative imposition of something negative
or unpleasant on a person or animal in response to behaviour deemed wrong by
an individual or group. The authority may be either a group or a single person,
and punishment may be carried out formally under a system of law or
informally in other kinds of social settings such as within a family. Negative
consequences that are not authorized or that are administered without a breach
of rules are not considered to be punishment as defined here. The study and
practice of the punishment of crimes, particularly as it applies to imprisonment,
is called penology, or, often in modern texts, corrections; in this context, the
punishment process is euphemistically called "correctional process".

Fundamental justifications for punishment

include: retribution, deterrence, rehabilitation, and incapacitations such as
isolation in order to prevent the wrongdoer's having contact with potential
victims. Of the four justifications, only retribution is part of the definition of
punishment and none of the other justifications are guaranteed outcomes.

If only some of the conditions included in the definition of punishment are

present, descriptions other than "punishment" may be considered more accurate.
Inflicting something negative, or unpleasant, on a person or animal, without
authority is considered either spite or revenge rather than punishment. In
addition, the word "punishment" is used as a metaphor, as when a boxer
experiences "punishment" during a fight. In other situations breaking the rules
may be rewarded, and is therefore without negative consequences, and so

21 | P a g e
cannot be considered punishment. Finally the condition of breaking (or
breaching) the rules must be satisfied to be considered punishment.

Bibliography

 Tort 10th edition by W.V.H Rogers (1984)

 Smith and Hogan Criminal law, 6th edn,(1988)
 K.D.Gaur, A textbook on the I.P.C (1998)
 K.D.Gaur, Criminal Law: Cases and Materials (1999)

22 | P a g e