This article has been written by Ms. Muskan Chugh, a student studying Ll.B. from Department of Laws, Panjab University, Chandigarh. The author is a 2nd year law student.
REFORM V. PUNISHMENT – WHICH ONE HAS MORE BENEFITS
Meaning
Punishment is a concept which is followed World wide. Any offender whose offence is proven in the court of law is given punishment as prescribed by the law for that offence.
Theories of punishment
There are different types of punishment prevalent from the ancient times. They are as follows:
• DETERRENT THEORY- It is mainly known as the preventive theory. This works on the principle of fear. It was mainly used in ancient times when the offenders were given grave punishments to create a fear in the minds of people seeing it and it acts as an example for other people to not commit that crime in future. Example – cutting the hands of the offender in front of common public for the offence of theft. But it is not relevant in today’s time as a number of factors are considered before giving any punishment to the offender.
• RETRIBUTIVE THEORY – This theory is also known as theory of vengeance. It believes in the concept of “a tooth for a tooth, an eye for an eye”. The main motive of this was to make the offender suffer the same pain which the victim has gone through. It was to bring moral justice, satisfaction to the victim. Gandhi Ji was always against this theory. He said that, “ hate the Sin, not the sinner”. The use of such kind of theory is decreasing over time as the punishment givers apply the logic that if this punishment is given, will it undo the situation for victim in any way or not.
• PREVENTIVE THEORY – This is known as the disablement theory. This means that disable the offender from committing crime in future by giving him such a punishment. For e.g. death penalty or Life imprisonment. Jurist Bentham supported this theory because he believed that this theory makes the law more humane.
• REFORMATIVE THEORY- This theory is mainly followed in India. The idea behind this theory is to reform the behaviour of the offender by providing them with adequate training and education and making them law abiding citizens. It follows the quote, “hate the crime, not the criminal”. It aims at reforming the criminals as it is believed that people commit crime because of the circumstances. But this theory cannot be applied to hard core or repeated criminals as they will never reform but will become habitual of committing crimes and then staying in the prison and then go out and repeat the same process.
Does giving the chance to reform is better or punishment is?
It is a question which has a moderate answer to it. We cannot opt for one extreme. Both of them have their own pros and cons. While preventive theory is applicable many a times, the deterrent and retributive theory are not in use in today’s time as they are not in favour of human rights much.
The choice is between preventive theory and the reformative theory. The criminals who had done some grave offence shall be punished according to the preventive theory so that further crime could be prevented in the society and the ones who had done trivial offences can be given punishment under reformative theory so that the people who had committed some trivial offence due to some circumstances could get a chance to reform his life and become a good citizen.
Case laws
MOHAMMAD GIASUDDIN V. STATE OF A.P., 1977
The Hon’ble Court held that,
“Every saint has a past, and every sinner has a future,” Justice Krishna Iyer observed in the case of Mohd. Giasuddin v. the State of A.P. (1977). The culture that gives rise to anti-social behaviour must be combated through reculturisation rather than absolute cruelty. As a result, the individual is the subject of concern in penology, and the primary objective is to save him for the societal structure. Thus, cruel and vicious punishment is a relic of the past and a regressive practice. Modern humans recognise punishment as a procedure of restructuring an individual who has effectively turned to criminal activity, and the present society has a major stake in the rehabilitation of the offender as a means of social defence. As a result, instead of an ‘in terrorem’ approach, a therapeutic approach must prevail in our court system because harsh confinement of the individual only results in a mental laceration. As a result, instead of an ‘in terrorem’ approach, a therapeutic approach must prevail in our court system because harsh confinement of the individual only results in a mental laceration.”
SATISH V. STATE OF U.P. AND ANR., 2021
In this case, the Hon’ble Supreme Court observed that the first time offenders should be given a chance/ opportunity to apologise and look forward to a better future. They believe that a decent society could be achieved by harmony, brotherhood and not by punitive behaviour.
Conclusion
Both, the preventive and reformative theory of punishment have their own pros and cons. No one particular theory could be chosen for every case. It will depend upon the facts of different cases that which theory is to be applied and why.
References
Indian Penal Code, 1860
NV Paranjape Jurisprudence
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