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Prof.(Dr.) Priya Sepaha
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With the change in the social structure, 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.
Punishment, according to the dictionary, 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 wrong-doer, it serves little purpose.
Kenny wrote: "it cannot be said that the theories of criminal punishment current among 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 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.
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 permanent or temporary member."
There are five types of theories punishments describes under criminal justice system:
The term “Deter” means to abstain from doing an act. Punishment is primarily 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) the criminals from doing the crime or repeating the same crime in the future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in the future and it would also be a lesson to the other members of the society, as to what can be the consequences of committing a crime.
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 very often, a crime is 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 in order to otherwise prevent private vengeance.
Whereas other theories regard punishment as a means to some other end the retributive theory looks on 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 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 realize 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. This theory has not been supported by Criminologists, Penologists, and Sociologists as they feel that this theory is brutal and barbaric.
3. Preventive theory -
This theory too aims to prevent the crime rather than avenging it. As per this theory, the idea is to keep the offender away from society. This criminal under this theory 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.
This theory has been criticized by some jurists. 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 the 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 character and the motive of the criminal. 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. This theory maintains that "you cannot cure by killing". This theory is the most humane of all the theories which aim to reform the legal offenders by individual treatment.
The exponents of the reformative theory believe that wrong-doers stay in prison should serve to re-educate him and to re-shape his personality in a new mold. 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 bring about a change in the personality and character of the offender, so as to make him a useful member of society. This theory has been proved 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 realizes 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. Various Punishment theories are proposed with various intentions. The variations in the modality of punishment occur because of the variation of societal reaction to lawbreaking.
1. K.D. Gaur, Indian Penal Code, 1860
2. Prof. N.V. Paranjpee, Criminology & Penology with Victimology.