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With the change in the social structure, society has witnessed various punishment theories, the radical changes that they have undergone from the traditional to the modern level, and the crucial problems relating to them.
According to the dictionary, punishment involves the infliction of pain or forfeiture; it is the infliction of a penalty, chastisement, or castigation by the judicial arm of the State. But if the sole purpose of punishment is to cause physical pain to the wrongdoer, it serves little purpose.
Kenny wrote: "It cannot be said that the theories of criminal punishment currently among our judges and legislators have assumed...." either a coherent or even a stable form.
B. Malinowski believes all legally effective institutions are means of reducing an illegal or intolerable state of affairs, restoring equilibrium in social life, and venting the feelings of oppression and injustice felt by 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.
Walter Reckless describes punishment as "the redress that the commonwealth takes against an offending member."
In the words of Westermarck, punishment is "Such suffering as is inflicted upon the offender in a definite way by, or in the name of the society of which he is a permanent or temporary member."
There are five types of theories punishments described under criminal justice system:
The term “Deter” means to abstain from doing an act. Punishment is primarily a deterrent when its object is to show the futility of crime and thereby teach a lesson to others. Deterrence acts on the motives of the offenders, whether actual or potential.
The main purpose of this theory is to deter (prevent) criminals from committing crimes or repeating the same crimes in the future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in the future. This would also teach the other members of society what the consequences of committing a crime can be.
This theory has proved effective, even though it has certain defects. For instance, a hardened criminal becomes accustomed to the severity of the punishment, and deterrence does not always prevent him from committing a crime. On the other hand, it also fails to affect an ordinary criminal, as a crime is often committed in a moment of excitement.
2. Retributive theory-
Retribution basically means that the wrongdoer pays for his wrongdoing. Since a person who is wronged would like to avenge himself, the State considers it necessary to inflict some pain or injury on the wrongdoer to prevent private vengeance.
Whereas other theories regard punishment as a means to some other end, the retributive theory regards it as an end in itself. It regards it as perfectly legitimate that evil should be returned for evil and that a man should be dealt with in the manner in which he deals with others.
Retribute means to give in turn. This theory of punishment is based on the principle- “An eye for an eye, a tooth for a tooth”. The object of this theory is to make the criminal realise the suffering of the pain by subjecting him to the same kind of pain as he had inflicted on the victim. This theory aims at taking revenge rather than social welfare and transformation.
It is also unfortunate that this theory overlooks the fact that two wrongs do not really make a right. The theory also seems to ignore that if vengeance is the spirit of punishment, violence will be a way of prison life. Criminologists, Pennedologists, and Sociologists have not supported this theory as they feel that it is brutal and barbaric.
3. Preventive theory -
This theory, too, aims to prevent crime rather than avenge it. The idea is to keep the offender away from society. Under this theory, a criminal is punished with death, life imprisonment, etc.
Thus, the extreme penalty, the death sentence, ensures that once and for all, the offender will be prevented from repeating the heinous act. In the past, maiming was considered an effective method of preventing the wrongdoer from committing the same crime in the future by dismembering the offending part of the body. Thus, a thief's hand would be cut off or a sexual off.
In the ultimate analysis, the preventive mode of punishment works in three ways, viz:-
a) by inspiring all prospective wrong-doers with the fear of punishment;
b) by disabling the wrong-doer from immediately committing any crime; and
c) by transforming the offender by a process of reformation and reeducation so that he would not commit a crime again.
Some jurists have criticised this theory. In this connection, the following extract from Rule 58 of the International Standard Minimum Rules is elucidative:
"The purpose and justification of a sentence of imprisonment or a similar measure derivative of liberty are ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society, the offender is not only willing but also able to lead a law-abiding and self-supporting life."
4. Reformative theory -
The idea behind this theory is that no one is a born criminal, and criminals are also humans. Under this theory, it is believed that if criminals are trained and educated, they can be transformed into law-abiding citizens. According to the reformative theory, a crime is committed as a result of the conflict between the criminal's character and motive. One may commit a crime either because the temptation of the motive is stronger or because the restraint imposed by character is weaker.
According to this theory, crime is like a disease. It maintains that "you cannot cure by killing." This theory is the most humane of all the theories that aim to reform legal offenders through individual treatment.
The exponents of the reformative theory believe that wrongdoers who stay in prison should serve to re-educate them and to reshape their personalities in a new mould. They believe that though punishment may be severe, it should never be degrading. To the followers of this theory, execution, solitary confinement, and maiming are relics of the past and enemies of reformation. Thus, the ultimate aim of the reformists is to try to change the offender's personality and character, so as to make him a useful member of society. This theory has been proven to be successful and accepted by many jurists.
5. Expiatory theory -
Under this theory, it is believed that if the offender expiates or repents and realises his mistake, he must be forgiven. It states that compensation is awarded to the victim from the wrong-doer. Awarding compensation from the accused, the accused is not physically punished. He is economically punished, and such compensation is awarded to the victim or victim's family members.
Various kinds of punishments are prescribed for various types of Crimes, and Various Punishment theories are proposed with various intentions. Variations in the modality of punishment occur because of variations in societal reactions to lawbreaking.
References:
1. K.D. Gaur, Indian Penal Code, 1860
2. Prof. N.V. Paranjpee, Criminology & Penology with Victimology.
3. http://shodhganga.inflibnet.ac.in/bitstream/10603/45012/9/09_chapter%204.pdf
