The article has been written by Mr. Rajdeep Hembram, a 1st year LLM student from University Law College, Hazaribagh, Jharkhand                                              

Introduction

The root of reformation is the Latin word reformare, which means to form again or to change.  the reformative or the restorative theory of punishment emphasizes on reformation of the offenders through the method of individualism. According to this theory, the judge, while awarding punishment, must take into account various social factors surrounding the offender. These factors include inter alia the age of the offender, the character of the offender, the crime committed, and the circumstances under which the crime was committed. The aim of this theory is rehabilitation of the offender as a law-abiding member of the society. Thus, punishment is not regarded as an end but only as a means to the end.

Types of theories of punishment

The different theories of punishment are as follows :-

1. Deterrent theory – In Deterrent theory, the term “DETER” means to abstain from doing any wrongful act. This simply means, according to this theory if someone commits any crime and he/she is punished by a severe punishment, then, it may result  that the people of the society will be or may be aware of the severe punishments for certain kinds of crimes and because of this fear in the minds of the people of the society, the people may stop from committing any kind of crime or wrongful act. The example of deterrent theory is death sentence.
2. Retributive theory – Retribution comes from the Latin for giving back what’s due, either reward or punishment. The retributive idea implores for some kind of proportionality between crime and punishment and it disregards all punishments which are disproportionate in every sense. Retribution is based on the concept of lextalionis (meaning Latin lex talionis, principle developed in early Babylonian law and present in both biblical and early roman law that criminals should receive as punishment precisely those injuries and damages they had inflicted upon their victims)—that is, the law of retaliation. At its core is the principle of equal and direct retribution, as expressed in exodus 21:24 as “an eye for an eye.” 
3. Preventive theory – Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of punishment due to its humanizing nature. The main goal of the preventive theory of punishment is to disable the criminal from committing any further crimes, whether of a similar or different nature. This disablement may be either permanent or temporary. Imprisonment is a form of disablement, but where it is life imprisonment, the disablement is permanent, and where it is only for a specific amount of time, say seven years, then the disablement is temporary.
4. Reformative theory – Justice Krishna Iyer in the case of Md. Giasuddin v. state of A.P. made an observation that “ Every saint has a past and every sinner has a future. According to this theory, the judge, while awarding punishment, must take into account various social factors surrounding the offender. These factors include inter alia the age of the offender, the character of the offender, the crime committed, and the circumstances under which the crime was committed. The aim of this theory is rehabilitation of the offender as a law-abiding member of the society. Thus, punishment is not regarded as an end but only as a means to the end.  There are variety of method through which reformation is achieved are :-

1. Education
2. Therapy
3. Training
4. Parole and probation

The main objective of reformative theory

Reformative theory is also known as rehabilitative theory. The object of the theory is to reform the criminal other than punishment. The principle of this theory is that no one is a born criminal in our society. According to this theory we have to separate crime from the criminal there are various reasons like environment, circumstance, personal issues etc. abet someone to commit crime. Reformative theory is accepted in most of the countries around the world on its humanitarian ground of rehabilitating a criminal into a good human being. In various acts and sections this theory is already implemented. The acts are –  children act 1960, The Probation of Offenders act 1958, Juvenile Justice ( care and protection of children) Act 2015 and section 27 & 360, 432, 433 of Criminal Procedure Code.

Reformative theory impact in Indian law

Article 72 of the Indian Constitution 1950 enables the President of India to pardon a wrongdoer. The Governor of the state also has the same authority under Article 161 of the Indian Constitution. When the President pardons, the sentence and judgement of the convict are completely absolved of all penalties, punishments, and disqualifications. 

Article 72 states that  Power of President to grant pardons, etc, and to suspend, remit or commute sentences in certain cases

1.  The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence.

1.  in all cases where the punishment or sentence is by a court Martial;
2.  in all cases where the punishment or sentence is for an offence against any law relating to a matter to which the executive power of the Union extends;
3.  in all cases where the sentence is a sentence of death.

Article 161 states that  Power of Governor to grant pardons, etc, and to suspend, remit or commute sentences in certain cases. The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.

In Criminal procedure code 1973 also have a impact of reformative theory

1. Section 27 of the CrPC states that any crime not punishable with life imprisonment or death if committed by any individual who is below the age of sixteen on the day he appears or is introduced before the court may be tried by the court of the Chief Judicial Magistrate or by any court particularly authorised under the Children Act 1960 or any other legislation in force for the time being providing for the treatment, mentoring, and rehabilitative services of youth.
2. Section 360 of the CrPC enables the court to grant discharge on probation on good behaviour or after admonition.
3. Section 432 of the CrPC says that the government has statutory power under this section that whenever an individual is convicted of any punishment, the government can suspend or remit the punishment in entirety or in proportion at any period.
4. Section 433 of the CrPC enables the government to commute or change the punishment of the offender from:

• a death sentence to any other form of punishment;
• life imprisonment to imprisonment not exceeding 14 years;
• rigorous imprisonment to simple imprisonment

Court judgement 

1. MD. Giasuddin v. State of A.P 1977

“Every saint has a past, and every sinner has a future,” Justice Krishna Iyer observed in this case . The Supreme Court observed that “Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society.

1. Satish v. State of U.P. and Anr, 2021

In this Supreme Court observed that, “While it is indisputably true that a community has the right to live a peaceful and fearless life, without free-roaming criminals causing trouble in the lives of common peace-loving people.” However, the basis of the reformative theory is equally powerful, arguing that a decent society cannot be accomplished solely through punitive behaviours and vengefulness, and instead, public harmony, fellowship, and consensual social acceptance should be cultivated.

Conclusion

From above discussion it shows that there are various types of punishment and their own merits and demerits and some are changed due to change in society and impact of international humanitarian law as well as punishment become more humancentric. Earlier there were very harsh punishment it was like eye for an eye and more fearful.

Reference

types of punishment theory

https://www.toppr.com/guides/legal-aptitude/indian-penal-code/theories-and-kinds-of-punishment/#:~:text=There%20are%20majorly%20four%20theories,preventive%20theory%2C%20and%20reformative%20theory.

latin word

https://www.vocabulary.com/dictionary/reformation#:~:text=The%20root%20of%20reformation%20is,form%20again%20or%20to%20change.

punishment

https://www.ijlmh.com/wp-content/uploads/Reformative-Theory-of-Punishment.pdf

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