BANASTHALI VIDYAPITH

ASSIGNMENT ON JURISPRUDENCE - II

Self declaration of doing this assignment solely by my own self, the sources
being the notes of the class and an e-book introduced by Google of
jurisprudence, i.e JURISPRUDENCE AND HISTORY.

Learned about the various theories of punishment, deterrent, retributive,

Submitted by- ABHYA SONI

BBA LLB (3RD YEAR)

1713442
 BANASTHALI VIDYAPITH

FACULTY OF LAW

TAKE-HOME ASSIGNMENT IN LIEU OF II PERIODICAL TEST 2020

B.B.A.LL.B. IV Semester: Jurisprudence-II,

Teacher: Abhishek Pandey

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.

However, if punishment is such as makes the 28 THE INDIAN PENAL CODE (ACT XLV OF

1860) 128 offender realize the gravity of the offence committed by him, and to repent and atone

for it (thus neutralizing the effect of his wrongful act), it may be said to have achieved its desired

effect. A person is said to be "punished" when some pain or detriment is inflicted on him. This

may range from the death penalty to a token fine. Thus, punishment involves the infliction of

pain or forfeiture; it is a judicial visitation with a penalty, chastisement or castigation. In this

book entitled "Criminal Behaviour", Walier 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."

THE OBJECTS OF PUNISHMENT - The needs of criminal justice are considered to be five,

namely:
A. Deterrent

B. Preventive

C. Reformative

D. Retributive

E. Expiatory

THE DETERRENT THEORY OF PUNISHMENT: 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. Offences are committed, in most cases,

as a result of a conflict between the so called interests of the wrong-doer and those of society at

large. The object of punishment, according to this theory, is to show that, in the final analysis,

crime is never profitable to the offender, and as Locke observed, to make crime "an ill-bargain to

the offender." By making it an ill-bargain to the offender, the world at large would learn that

crime is a costly way of achieving an end. The idea behind deterrent punishment is that of

preventing crime, by the infliction of an exemplary sentence on the offender. By this, the State

seeks to create fear in its members, and thus deter them from committing crime through fear

psychology. The rigor of penal discipline is made a terror and a warning to the 129 offender and

others. According to the exponents of this theory, punishment is meant to prevent the person

concerned and other persons from committing, similar offences. The advocates for the retention

of capital punishment rely on this theory in support of their contention. They argue that capital

punishment, by its very nature, cannot have either a reformative value or be a retributive

necessity. Its only value, if at all, is by way of deterrence. However, the theory of deterrent

punishment fails to achieve its goal. 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. If the crime is pre-mediated, the offender commits the crime, knowing

fully well, the consequences arising from his act and performs the act because he cannot help but

do it. In a case decided by the Supreme Court, Phul Singh Vs State of Haryana1, a young

philanderer aged 22, overpowered by excess sex stress, raped a twenty-four year old girl next

door in broad day-light. The Sessions Court convicted him to four years' rigorous imprisonment,

and the High Court confirmed the sentence in appeal. When the matter went in appeal to the

Supreme Court, the sentence was reduced to two years' rigorous imprisonment, as the accused

was not an habitual offender, and had no vicious antecedents. The Supreme Court observed:

"The incriminating company of lifers and others for long may be counter-productive, and in this

perspective, we blend deterrence with correction, and reduce the sentence to rigorous

imprisonment for two years,"

The purpose of the punishment is to better the criminal from committing crime in future and to

set an example that others also who will commit crime will be punished like wise.by punishing

the offender an example is set that those who will violet the law will incur the risk of punishment

. The idea behind this is that punishment will thus curb .the criminal activities of the prospecting

offenders.  The chief purpose of punishment is the protection and maintenance of individual

interest in the society by deterring the evil minded person.

However the deterrent theory fails to have its effect on the hardened criminals as they are

accustomed to the severity of punishment. As far as new offenders are concerned it is less or not

at all effective as there are certain crimes which get committed in a flip, unplanned. Sometimes

1
(1980 Cri. L. J. 8)
the deterrent punishment is blended with other punishments so as to reform the criminal if he is

not a habitual offender. In Phul Singh V. State of Haryana the supreme court has observed, “the

incriminating company of lifers and others for long may be counterproductive and in perspective,

we blend deterrence with correction, and reduce the sentence to rigorous imprisonment for two

years.”

THE PREVENTIVE THEORY OF PUNISHMENT: If the deterrent theory tries to put an end

to the crime by causing fear of the punishment in the mind of the possible crime-doer, the

preventive theory aims at preventing crime by disabling the criminal, for example, by inflicting

the death penalty on the criminal, or by confining him in prison, or by suspending his driving

license, as the case may be. 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 wrong-doer from committing 130 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, viza) 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 crime again.

In this connection, the following extract from Rule 58 of the International Standard Minimum

Rules is illuminative: "The purpose and justification of a sentence of imprisonment or a similar

measure derivative of liberty is 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."
According to this theory the purpose of punishment is to serve as a preventive measure in

commission of crimes. The fear of punishment prevents the prospective law breaker from

violating the law. The object of punishment is protection of public by prevention of crime. The

purpose of punishment is the compelling of person to cease or refrain from committing crime, by

forcing or persuading them to conform to the established rules of conduct designed for the

protection of government, of life, of property and of other rights, privileges and immunities

granted by law.  Prevention as a purpose of punishment does not seem to be very convincing and

does not work very successfully in checking crime.

If the deterrent punishment would not solve the sole purpose of punishment the other mode is

preventive method of punishment. By preventive the criminal is prevented from committing the

crime either by putting him into imprisonment, by inflicting death penalty or by ending the

modes by which he used to commit crime. With imprisonment, he is away from the society, and

hence no chance of committing the crime as he is not free. Secondly, the modes by which the

crime was committed are chopped off like hands of robbers and thief, organs of sexual offenders

etc. Thus, by preventing the criminal he is abstained from committing the crime. To derivate the

offender is the ultimate remedy is the principle of this theory.

THE REFORMATIVE THEORY OF PUNISHMENT: 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 131 imposed by character is weaker. The deterrent theory, by showing that

crime never pays, seeks to act on the motive of the person, while the reformative theory aims at

strengthening the character of the main, so that he may not become an easy victim to his own

temptation. This theory would consider punishment to be curative or to perform the function of a
medicine. According to this theory, crime is like a disease. This theory maintains that "you

cannot cure by killing". The exponents of the reformative theory believe that a wrong-doers stay

in prison should serve to re-educate him and to re-shape his personality 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 bring about a change in the

personality and character of the offender, so as to make him a useful member of society. The

reformists argue that if criminals are to be sent to prison in order to be transformed into law-

abiding citizens, prisons must be turned into comfortable, dwelling houses. This argument is,

however, limited in its application, and it must be remembered that in a country like India, where

millions live below the poverty line, it may even act as an encouragement to the commission of

crimes. Lamenting on the conditions prevailing in jails in India, Justice Krishna lyer opens his

judgment in Rakesh Kaushik Vs Superintendent, Central Jail 2 with the following poignant

question : "Is a prison term in Tihar Jail a post-graduate course in crime ?" In Sunil Batra (II)

V. Delhi Administration3 the Supreme Court regarded a simple letter from a co-prisoner as

sufficient to invoke proceedings by way of habeas corpus. The judgment deals at length with the

shocking conditions prevailing in Indian prisons and suggests a series of prison reforms.

Lamenting on the atrocities prevailing in Delhi's Tihar Jail, Justice Krishna lyer, in the course of

his learned judgment, observes a follows. "The rule of law meets with its Waterloo when the

State's minions become law-breakers, and so the Court as a sentinel of justice and the voice of

the Constitution, runs down the violators with its writ, and serves compliance with human rights

even behind iron bars and by prison wardens." 132 True it is, that the reformative element had

2
(1980 Supp. S.C.C. 183)
3
(1980 3 S.C.C. 488),
long been neglected in the past. However, the present tendency to lay heavy stress on this aspect

seems to be only a reaction against the older tendency to neglect it altogether, and has therefore,

the danger of leaning to the other extreme. Whereas reformation is an important element of

punishment, it cannot be made, the sole end in itself. It must not be overlooked, but at the same

time, it must not be allowed to assume undue importance. In the case of young offenders and

first offenders, the chances of long-lasting reformation are greater than in the case of habitual

offenders. Again, some crimes, such as sexual offences, are more amenable to reformative

treatment than others. Further, reformative treatment is more likely to succeed in educated and

orderly societies than in turbulent or under-developed communities

This theory is also known as corrective or rehabilitative theory. Reformation means “the effort to

restore a man to society as a better and wiser man and as good citizen.” This theory endeavors to

make the criminal harmless by supplying him those things which he lacks and cure him of those

drawbacks which made him to commit crime. By reformation of the criminal is meant his moral

regeneration, and developing the sense of honesty.  A person who commits a crime and suffers

punishment for that comes back to the society and lives along with his other fellow beings.

Therefore punishment must aim at making a man worthy of living in the society. The reformative

theory sees in the readjustment of the prisoner to the demands of society the greatest need of the

criminal. This theory admits only such types of punishment which re educative and discipline the

criminal, not those who inflict pain on the offender.

According to this theory to commit crime is decease and to cure it reformation serves as a

medicine. In this the offender is cured morally as well as changing few physical habits. As far as

this theory is concerned the aim is to make the offender so mentally strong that he can stop

himself from the temptation of committing crime. He is reeducated and disciplined so that he
become a strong person altogether. And for this the imprisonments should have a healthy

environment so as to transform the criminal. In country like India as it is over populated and the

number of crimes and criminals are also on rise it is difficult to say that imprisons will have an

healthy environment. And secondly if imprison is a good place to live and as poverty is

flourishing in India people will purposely commit crime so that at least they get shelter and food

in imprison. In Sunil Batra II V. Delhi Administration on prevailing conditions of Indian jails the

court has observed that, “ the rule of law meets with its waterloo when the states minions become

law breakers, and so the court as a sentinel of justice and the voice of the Constitution, runs

down the violators with its writ, and serves compliance with human rights even behind iron bars

and by prison wardens.”

THE RELTRIBUTIVE THEORY OF PUNISHMENT: While discussing the history of the

administration of justice, it was seen that punishment by the State is a substitute for private

vengeance. In all healthy communities, any crime or injustice stirs up the retributive indignation

of the people at large. 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. An eye for an

eye and a tooth for a tooth is deemed to be the rule of natural justice. Though the system of

private revenge has been suppressed, the instincts and emotions that lay at the root of these

feelings are yet present in human nature. Therefore, according to this theory, the moral

satisfaction that society obtain from punishment cannot 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. (and as actually happens in some prisons of the world, which are equipped with

airconditioning, private toilets, TV sets etc.), the spirit of vengeance would not be satisfied, and

it might find its way through private vengeance. Therefore, punishment, instead of preventing a

crime, might indirectly promote it. Unfortunately, the retributive theory ignores the causes of the

crime, and it does not strike at the removal of the causes. A mere moral indignation can hardly

134 prev4nt crime. It is quite possible that the criminal is as much a victim of circumstances as

the victim himself might have been. 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

The origin of this theory lies in the primitive notion of vengeance against the wrong doer.

punishment satisfy the felling of revenge in older times, when a man injured another, it was the

right of the injured person to take revenge on the person causing injury .in those days an eye for

eye and for tooth for tooth was considered to be the law.  In modern enological thought

retribution means that the offender must suffer sum  evil not in order to satisfy and  aggrieved

individual’s desire for revenge, nor as a mark of public dis approval  of his conduct but for his

own sake so ,that he may come to realize the justice of his punishment  this theory consider a

punishment as an end in itself although the modern trend of the penologist is to regard

punishment as a means to an end and not an end in itself according to this theory moral blame

worthiness of the offender is the basis of punishment .

This is the most ancient mode of punishment. This was prevailed at times when private

vengeance would take place. Like blood for blood, eye for eye, tooth for tooth. To administer

such private vengeance the state had taken administration of justice in its hands. And accordingly
the punishment used to be inflicted as hand for hand etc. though this theory or this punishment

never served any purpose of punishment it wasn‟t advocated that much by the criminologists. No

theory in itself is sufficient to curb crime and it has been observed that mostly the combination is

used to curb down the problem of rising crime and to have a deterrent effect on the society that

will prevent the commission of crime. In Narindersingh&Ors. V. State of Punbaj&Anr, there

was a brief narration of the jurisprudential theories of Punishment: Firstly, there are certain acts

which are prohibited by the law. Such prohibited acts are offences. Whoever commits an

offence has to face the consequences of his wrong doing. Such consequences are in penal form.

It may be an imprisonment, monetarily or both and for serious offences capital punishment. In

fact even imprisonment has its gravity. It may be simple one or rigorous. Secondly, the question

arose as to why the persons who commit crime have to be subjected to the penal consequences.

Many philosophies/jurisprudence justify the penal consequences as having retributive,

rehabilitative, deterrence or restoration effects. Any or combination of this is the ultimate goal of

sentencing. Thirdly, sentence guidelines are provided to guide the judges in awarding

sentences in various countries. Such guidelines are provided statutorily or otherwise. Whereas till

date in India we do not have such policy. The aim of such policies might not only aim at

achieving consistencies in awarding punishment but to prescribe sentence policy or purpose for

awarding it, like whether deterrence , retribution etc. In India the courts go by their own

perception on awarding sentences. If the nature of a judge is to give punishment in form of

retribution he’ll grant that. If other judge is of different outlook and believes in rehabilitation

he’ll follow that. It depends on all the philosophy of the judge. In cases of crime against society

and heinous crimes the deterrent theory of punishing the offender becomes relevant.
EXPIATORY THEORY OF PUNISHMENT: Expiatory theory of punishment is also known

as theory of penance. As per this theory, punishment is necessary for the purification of the

offender.  It is a kind of expiation or penance for the misdeeds of a person. In modern times

expiation theory is accepted in modified version and is considered by some to be part of

retributive theory.

Expiation is akin to the idea of retribution. On this view crime is done away with or blotted out

by the suffering of its appointed penalty.

As a matter of fact, expiatory theory being solely based on morality, has little to do with law or

legal concepts. Therefore, many jurists refuse to accept it as a legal theory of punishment. This

theory is more related to ancient religious perceptions regarding crime and punishment. This

theory is more related to ancient religious perception regarding crime and punishment when

prisoners were placed in isolated cells to repent or expiate for their crime or guilt from the core

of their heart and resolve to shun crime. It was believed that anyone who sincerely repents for his

misdeeds or crimes, deserves that among who sincerely repents for his misdeeds or crimes,

deserves to be forgiven and let off. The ancient Hindu law commentator Manu was a great

admirer of expiation as a form of punishment for the rehabilitation of the criminal in the society.

The expiatory theory, being based on ethical considerations, has lost its relevance in the modern

system of punishment. In the present age of materialism and declining moral values, expiation

can hardly be effective in bringing about a change in the criminal mentality of offenders and

therefore, expiatory theory as a punishment is not suited in the present context of rationalized

penal policies.