The criminal justice system is a manifestation of the fundamental principles and values that underpin society. The enforcement mechanism employed herein is predicated upon the utilisation of punitive measures. The field of criminal justice serves the purpose of safeguarding not only individuals, but also the fundamental framework and cohesion of society, by addressing the actions of individuals and groups who seek to undermine public tranquilly and harmony through their undesirable, malicious, and notorious behaviour. According to the principles of criminal law, it is established that certain behaviours or actions that are deemed socially harmful are strictly prohibited. The prevention of such deleterious actions in contemporary society is achieved through the imposition of a threat or penalty by the governing body.
The primary purpose of punishment is to safeguard society from individuals who engage in disruptive and undesirable behaviour. This is achieved through the deterrence of potential offenders, the prevention of recidivism among current offenders, and the rehabilitation of offenders to foster their transformation into law-abiding members of society. The essence of the purpose of punishment has been succinctly articulated by Manu, a prominent Hindu-law authority, in the subsequent statement: Punishment serves as the governing force for all of humanity; it is solely through punishment that they are preserved; punishment remains vigilant even when their protectors are in slumber; the discerning individual regards punishment (danda) as the epitome of justice.
The objective of safeguarding society is pursued through the utilisation of the principle of deterrence, prevention, retribution, reformation, expiatory, and compensation. Within the realm of punitive measures, deterrence is widely acknowledged as the primary objective, with all other purposes being considered subordinate in nature. The present discourse shall expound upon the prevailing theories of punishment, which are hereby enumerated as follows:
Deterrent theory
The term “Deter” means to abstain from doing an act. The main purpose of this theory is to deter (prevent) the criminals from committing the crime or repeating the same crime in future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in future and it would also be a lesson to the other members of society as to what can be the consequences of committing a crime. This theory has proved effective, even though it has certain defects. According to this theory, the object of punishment is not only to prevent the wrong doer from doing a wrong a second time, but also to make him an example to others who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for control of crime. To quote a judge:
“I do not punish you for stealing the ship, but so that ship may not be stolen.”
That is to say the chief aim of criminal justice system is to make the evildoer an example and a warning to all that are like-minded.
Criticism: This approach has been questioned on the grounds that it has proven ineffectual in preventing crime and that excessively harsh punishments tend to undercut their own aim by eliciting public sympathy for people who are subjected to cruel and inhuman punishment. A deterrent punishment is more likely to harden the criminal rather than instill in him a dread of the law. Hardened offenders lack fear of punishment. According to deterrent theory, the main objective is ‘to deter crime, by creating a fear or establishing an example to the society.’ Now, death penalty is a severe punishment. In the Nirbhaya case, the Court gave death sentence to the four convicts for committing gang rape. We can say that it is a great example for future offenders who will think about committing a crime like rape in future. So, according to this theory, after Nirbhaya judgment crimes like rape should not happen. But they are happening till now. Day-by-day, rape cases are increasing in our society.
Preventive Theory
Another object of punishment is prevention or disablement. Offenders are disabled from repeating the crime by awarding punishments, such as death, exile or forfeiture of an office. By putting the criminal in jail, he is prevented from committing another crime. 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. According to Justice Holmes ” There can be no case in which the lawmaker makes certain conduct criminal without his thereby showing a wish and purpose to prevent that conduct. Prevention would accordingly seem to be the chief and only universal purpose of punishment. The law threatens certain pains if you do certain things, intending thereby to give you a new motive for not doing them. If you persist in doing them, it has to inflict the pains in order that its threats may continue to be believed.” According to Paton ” The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty and exile serve the same purpose.
- Dr. Jacob George v state of Kerala: In this case, the Supreme Court held that the aim of punishment should be deterrent, reformative, preventive, retributive & compensatory. One theory preferred over the other is not a sound policy of punishment. Each theory of punishment should be used independently or incorporated on the basis of merit of the case. It is also stated that “every saint has a past & every sinner has a fortune”. Criminals are very much a part of the society so it is a responsibility of the society also to reform & correct them and make them sober citizens of the society. Because the prevention of crime is the major goal of the society and law, both of which cannot be ignored.
- Surjit Singh v State of Punjab: In this case, one of the accused, a policeman entered the house of the deceased with the intention to commit rape but failed to do so as the as sons of the deceased shouted for help. Another accused suggested the policeman to kill the deceased. The accused was held liable under section 450 of the Indian Penal Code. While on the contrary, the death penalty or capital punishment is more of a temporary form of disablement.
Criticism: The main criticism of this theory is that Preventative Punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the association of Harden Criminals.
Retributive Theory
This theory of punishment is based on the principle- “An eye for an eye, a tooth for a tooth”. Retribute means to give in turn. 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 a revenge rather than social welfare and transformation. This theory has not been supported by the Criminologists, Penologists and Sociologists as they feel that this theory is brutal and barbaric. “Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one. Punishment is an end in itself. Retribution could also be said to be the ‘natural’ justification”, According to Justice Holmes ‘It is commonly known that the early forms of legal procedure were grounded in vengeance.’
Criticism: The main criticism of this theory is that punishment per se is not a remedy for the mischief committed by the offender. It merely aggravates the mischief. Punishment in itself evil and can be justified only on the ground that it yields better results. Revenge is wild justice. Retribution is only a subsidiary purpose served by punishment.
Case laws: Now, let us move on to see some important case laws regarding this theory of punishment.
- Nirbhaya Judgement– This case is indeed the first and foremost case to be mentioned, while talking about retributive justice in India. In this Judgement, the Supreme Court sentenced four out of six felons involved in the extremely heinous Delhi gang rape case to death, much to the delight of the society, as they had committed an extremely gruesome, as well as morally unimaginable crime.
- Anwar Ahmad v/s. State of Uttar Pradesh and Anr.– In this case, the convicted had already undergone a six month imprisonment term, before being officially convicted by the Court. The Court held that since the convict had been convicted and also, the required ‘blemish’ had also been imposed upon him, it was not necessary to sentence him again in the name of ‘retributive punishment’, as it would inflict a very big loss upon the family as well.
- Sri Ashim Dutta Alias Nilu vs State of West Bengal– In this case, it was observed that both deterrent and retributive punishment aim at prevention of the recurrences of the offences by others passing exemplary punishment for a particular offence. But the civilization and the societies are progressing rapidly. There is advancement of science and technology. The literate people and the experts in different branches of knowledge started thinking in a different way. Eye for an eye, and tooth for a tooth are no more considered as the correct approach towards the criminals. Such principle may perpetuate the rule of the Jungle but cannot ensure the rule of law.
Theory of compensation
The main lookout in the law of crimes is to penalize the criminal, and/or to seek his reformation and rehabilitation with all the resources and goodwill available through the Courts and other Governmental and non-Governmental organizations. It must be seen that the criminals should get proper judgement for their crimes so caused and the harassment caused to the victim and towards their family members and property. The victims in a crime can be compensated on mainly two grounds, namely-
- A criminal who had inflicted an injury against the person (or group of persons), or the property must be compensated for the loss caused that has caused to the victim, and
- The State that has failed to provide safety towards its citizens, must receive compensation for the loss caused.
Compensation is the true essence of deterrent, reformative and a necessary contribution of retribution.
Criticism: The main criticism of this theory is that it tends to oversimplify the motive to crime.
Case Laws:
In the landmark case of DK Basu v. State of West Bengal, the Apex Court held that a victim who is under the custodial right, has every right to get compensated as her Right to Life, which is under Article 21 of the Constitution, has been breached by the officer of the State.
In the State of Gujarat and Anr. v. Hon’ble High Court of Gujarat, Justice Thomas had held that, “The Reformative and reparative theories deserve serious consideration, where the victim(s) of crime or his family members should get compensated from the wages that is earned in prison by the criminal.” The Court suggested that the particular State should enact comprehensive legislation in respect of its compensation payable to victim of a crime.
Reformative theory
According to the reformative theory, the purpose of punishment is to rehabilitate criminals so that they might lead more productive lives. It is believed that criminals can be reformed through the use of punishment. It is believed that this can be accomplished by either instilling in the criminals a fear of further punishment and a conviction that crime does not pay, or by breaking habits that the criminals have formed, particularly if the penalty is a lengthy period of confinement that gives the prisoner no opportunity for improvement. Even if an offender commits a crime under certain circumstances, he does not cease to be a human being. The circumstances under which he committed the crime may not occur again. According to this theory, crime is like a disease which cannot be cured by killing rather than curing it with the medicine with the help of process of reformation.
Criticism: Reformative theory predicts improved jail conditions and facilities, legal collaboration between various authorities, and diligent effort on their side to modify convicts. It necessitates enormous undertakings that a poor country cannot afford.
Transformation can work out on those individuals who can be improved, there are individuals who can’t be changed like bad-to-the-bone lawbreakers, profoundly instructed and proficient hoodlums.
Conclusion and Suggestion
Based on the aforementioned deliberations, it can be inferred that the establishment of an impeccable criminal justice system is unattainable if solely predicated upon any singular theory of justice. In order to adequately address the matter at hand, it is imperative to consider a comprehensive amalgamation of all relevant factors and elements. It is imperative to acknowledge that each theory possesses inherent merits, thereby necessitating a diligent endeavour to extract and assimilate the favourable aspects of each theory. This approach aims to culminate in the attainment of an optimal amalgamation, wherein the most advantageous elements from all theories are incorporated. The proper placement of reformative aspects must be duly considered, for example. The individual in question possesses dual roles, being both a subject of criminal liability warranting punitive measures, as well as a recipient of medical attention as a patient. The principle of proportionality necessitates that the severity of punishment be commensurate with the inherent characteristics and seriousness of the offence committed. In accordance with legal precedent and established principles of jurisprudence, it is recommended that a first-time offender be afforded a measure of leniency in their treatment within the criminal justice system. It is imperative to consider the provision of distinct considerations for a minor who has engaged in delinquent behaviour. Specialised courts are established to facilitate the adjudication of cases involving minors, and those responsible for overseeing such courts are duty-bound to diligently explore methods and objectives aimed at rehabilitating the juvenile offender, rather than solely focusing on punitive measures. In accordance with prevailing legal principles, it is contended that an individual accused of a criminal offence should possess the opportunity to obtain release from custody by demonstrating tangible advancements in their behavioural patterns and overall conduct. The primary objective underlying the provision of any concession to an individual who has committed an offence should be to foster within said individual a genuine belief that leading a conventional and unrestricted existence is inherently superior to the confines of a correctional facility.
References
Text Book on Indian penal Code ( sixth Edition ), Gaur K D, Universal Law Publication.
India’s Legal System can it be saved, Fali.S.Nariman, Penguin Books,2017.
C.M.V. Clarkson, Understanding Criminal Law, William Collins, 1987.