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Criminal Justice : Punishment

Blackstone stated criminal justice as ‘public wrong’. The main purpose of administration of criminal justice has always been to punish the offender. The nature of the violation of public rights and duties which affects the community as a whole is called a crime and punishment is provided varying from sentence of death to a mere fine or binding over the lawbreaker to keep the peace or his release on probation after admonition.

Theories of Punishment

Various theories are advanced in justification for punishing the offender. The view regarding punishment also kept changing with the changes in the societal norms. The logic behind the sentence in a criminal trial has been highlighted by the Court in State of M.P. v. Ghanashyam Singh (2003 (8) SCC 13). The object is to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence.

There are of following kinds of theories:

Deterrent theory

The term ‘Deter’ means to abstain from doing an act. The main purpose of this theory is to deter the criminals from doing the crime or repeating the same in the future. Upon this theory, severe punishments are imposed on the offender so that he abstains from committing a crime. It would also constitute a lesson to the other member of the society. In the words of Salmond- punishment is before all things deterrent and the chief aim of the law of crime is to make the evil-doer an example and warning to all who are like minded as him. He further stated that offences are committed by reason of conflict of interest of the offender and the society. This theory concept could be determined in the words of Manu from ancient India. According to him punishment or “dandh” are the sources of righteousness because people abstain from committing wrongful acts through the fear of punishment.

Retributive theory

This theory is based on the principle- “An eye for an eye, a tooth for a tooth…” Retributive means to give in return. The object of the theory is to make the criminal realize the sufferings of the pain by subjecting him to the same kind of pain as he had imposed on the victim. The theory has been regarded as an end in itself as it only aims at revenge taking rather than sound welfare and transformation. Salmond puts his words stating that to suffer punishment is to pay a debt due to the law that has been violated. Revenge is the right of the injured person and the penalty for wrongdoing is a debt which the offender owes to the victim and when the punishment is given the debt is paid. This theory was never recognized as a just theory because it plays a role in self-motivation for committing a crime on the ground of justice for injustice. It is a kind of abatement prompted by society to victims.

Preventive theory

The preventive theory is founded on the idea of preventing the repetition of crime by disabling the offender through measures such as imprisonment, forfeiture, death punishment, etc. In the words of Paton, ‘this theory seeks to prevent the prisoners from committing the crime by disabling him.’ It pre-supposes that need of punishment for crimes simply arises out of social necessities as by doing so the community is protecting itself against anti-social acts which are endangering social order. This theory is also not a just method as stated by jurist Kant and others. Crimes do not reduce merely by awarding a term of imprisonment unless reformative efforts are made to integrate him in the mainstream of society through the process of rehabilitation.

Expiatory theory

This theory is solely based on the concept of morality. It emphasizes more on ancient religious perceptions regarding crime and punishment when prisoners were placed in isolated cells to repent or expiate for their crime or guilty from their core of the heart and the one who succeeded in doing so were let off. This theory is based on ethical considerations due to which it lost its relevance in the modern system of punishment.

Reformative theory

This theory emphasizes the reformation of offenders through some method. It is based on the humanistic principle. Even if an offender commits a crime, he does not cease out to be a human being. An effort should be made to reform him during the period of incarceration. This theory is based on the principle of ‘hate the sin, not the sinner.’ The focal point of the reformist view is that an effort should be made to restore the offender to society as a good and law-abiding citizen. The Supreme Court in the case of T.K.Gopal v. State of Karnataka1) stated that: the law requires that a criminal should be punished and the punishment prescribed must be meted out to him, but at the same time, reform of the criminal through various processes, despite he has committed a crime, should entitle him all the basic rights, human dignity, and human sympathy.

Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Naidu.2)

The logic behind the sentence in a criminal trial has been highlighted by the Court in State of M.P. v. Ghanashyam Singh.3) After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task.

It has been very aptly indicated in Dennis Councle Mc Gautha v. State of Callifornia4) that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case. The object is to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be. Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should ”respond to the society's cry for justice against the criminal“.

Punishments under Indian Penal Code

CHAPTER III of IPC is headed by “Of Punishments”.

Section 53. Punishment The punishments to which offenders are liable under the provisions of the Code are-

  • First- Death;
  • Secondly- Imprisonment for life;
  • Thirdly-[deleted]
  • Fourthly- imprisonment, which is of two descriptions, namely:
    1. Rigorous, that is, with hard labour;
    2. Simple,
  • Fifthly- Forfeiture of property;
  • Sixthly- Fine.

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AIR 2000 SC 1669 (1674)
AIR 1991 SC 1463
2003 (8) SCC 13
402 US 183: 28 L.D. 2d 711

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