Punishment is primarily used as a method of protecting society by reducing the occurrence of criminal behavior. The object of protecting the society is sought to be achieved by deterrence, prevention, retribution and reformation. Of these, deterrence is usually regarded as the main function of the punishment others being merely secondary.
The theories of punishment are as explained below:
- DETERRENT THEORY-
According to this theory, the object of punishment is not only to prevent the wrong-doer from doing a wrong thing a second time, but also to make him an example to other persons who have criminal tendencies. Salmond considers deterrent aspects of criminal justice to be the most important for control of time.
The chief aim of the law of crime is to make the evil-doer an example and a warning to all that are like-minded. Perhaps it is because of this fact that opinion poll conducted by the Law Commission of India in 2003, on the mode of Execution of Death Sentence reveal that 51 per cent respondents preferred public hanging as against 49 per cent opted for hanging in jail. In other words, the commission of every offence should be made a bad bargain.
The deterrent theory was the basis of punishment in England in the medieval period and consequently severe and inhuman punishments were inflicted even for minor offences.
But this theory has been criticized on the grounds that it has proved ineffective in checking crimes and also that excessive harshness of punishment tends to defeat its own purpose by arousing sympathy of the public towards those who are cruel and inhuman punishment. Deterrent punishment is likely to harden the criminal instead of creating in his mind a fear of law. Hardened criminals are not afraid of death or imprisonment.
- PREVENTIVE THEORY-
Another object of punishment is prevention or disablement. Offenders are disabled from repeating the offence by awarding punishments such as, death, exile or forfeiture of an offence. By putting the criminal in jail, he is prevented from committing another crime. According to Paton “The preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future. The death penalty life imprisonment and exile serve the same purpose of disabling the offender.”
Critics point out that preventive punishment has the undesirable effect of hardening first offenders, or juvenile offenders, when imprisonment is the punishment, by putting them in the association of hardened criminals.
- RETRIBUTIVE THEORY-
In primitive society punishment was mainly retributive. The person wronged was allowed to have a revenge against the wrong doer. The principle. ‘eye for an eye’. ‘Nail for a nail’, ‘limb for a limb’ was the basis of criminal administration. According to Justice Holmes: “It is commonly known that the early forms of legal procedure were grounded in vengeance.”
It has generally been urged by the advocates of this theory and accepted by the general public that the criminal deserves to suffer. The suffering imposed by the State in its corporate capacity is considered the political counterpart of individual revenge. It is urged that unless the criminal receives the punishment he deserves, one or both of the following effects will result, namely, the victim will seek individual revenge, which may mean lynching (killing or punishing violently) if his friends co-operate with him, or the victim will refuse to make a complaint or offer testimony and the State will therefore be handicapped in dealing with criminals.
- REFORMATIVE THEORY-
According to this theory, the object of punishment is the reformation of criminals. It is maintained that punishment tends to reform criminals and that it accomplishes this by instilling in them a fear of repetition of the punishment and a conviction that crime does not pay, or by breaking habits that the criminals have formed, especially if the penalty is a long period of imprisonment which 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. The object of the punishment should be to effect a moral reform of the offender. The criminal must be educated and taught some art or craft or industry during his term of imprisonment, the judge should study the character and age of the offender, his early breeding, family background, his education and environment, the circumstances under which he committed the crime, the motive which prompted him to indulge in criminal activities, etc. The object of doing so is to acquaint the judge with the circumstances under which the offence was committed so that the punishment meted out will serve the ends of justice.
Critics of this theory states that if criminals are sent to prison to be transformed into good citizens, a prison will no longer be a ‘prison’ but a dwelling house. The deterrent motive should not be abandoned altogether in favour of the reformative approach since the permanent influence of criminal law contributes largely to the maintenance of ethical, moral and social habits that prevent any but the abnormal, apart from exceptional circumstances, from committing crime.
CONCLUSION-
In fact, a perfect system of criminal justice could never be based on any single theory of justice. It would have to be a combination of all. Every theory has its own merit and demerits. Every theory should be made to extract the good points of each. For instance, the reformative aspect must be given its proper place. The offender is not only a criminal but also a patient to be treated.
Punishment should be proportionate to the gravity of the crime. A first offender should be leniently treated. Special treatments should be given to the juvenile delinquent. Special courts should be set-up for the trial of children and those in charge of such courts should strive to find ways and means of reforming the child and not simply punishing him. A criminal should be able to secure his release by showing improvement in his conduct. The object of any concession given to an offender should be to convince him that normal and free life is better than the jail life. The establishment of hospitals and improvement of living conditions in jail would better serve the purpose of rehabilitation.
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