Theories OF Punishment

Punishment is a process by which the state inflicts some pain to the persons or property of person who is found guilty of Crime.

Punishment: The Concept

Punishment is a means of Social Control. H.L.A Hart with Mr. Bean and Professor Flew have defined “punishment” in terms of five elements:

• It must involve pain or other consequence normally considered unpleasant.
• It must be for an offense against legal rules.
• It must be intentionally administered by human beings other than the offender.
• It must be an actual or supposed offender for his offense.
• It must be imposed and administered by an authority constituted by a legal system against which the offense is committed.

Humans have always been capable of dreaming brutal ways to punish alleged witches, offenders, etc. Even the penal system in ancient India had also been very ruthless. So, it would not be wrong to say that for ages, extremely violent and brutal methods of execution and punishments have come and gone in the entire world; few of these included pushing off the cliff, being crushed by an elephant, boiling method, blood eagle, and whatnot.

Historically the use of grave punishments is much older compared to the use of imprisonment or incarceration. Imprisonment is a punishment because an individual is removed from society and confined behind bars with other criminals. However, it is a milder punishment than many other forms used for centuries, like capital punishment or the death penalty. So, this article will discuss the types of punishment in ancient India to boost up your knowledge, theories of punishment, and many more. So, stay tuned till the end.

Types of punishment in Ancient India

Punishments have ranged from the most severe penalty to the death penalty (painful) to the payments of fines (painless) for every offense committed. Looking at the records, Amnesty International recorded 579 executions in 18 countries in 2021, an increase of 20% from 2020. This represented the second lowest number of executions recorded by Amnesty International since 2010. The types of punishment prevalent in India were:

1. Death Penalty

Capital punishment means the legal and authorized killing of someone as a punishment for an offense, that is, the death penalty for a crime. Previously, in ancient times, capital punishment was executed for every small crime. But, it is given only in the rarest of rare cases. Some of the forms of capital punishment used in ancient times were:

• Stoning: It was a method of capital punishment in which a group of people throws stones at a person until he dies. This is somehow still prevalent in Islamic countries etc.
• Pillory:  In ‘Pillory,’ the criminal was forced to stand in a public place with his head and hands locked in an iron frame so that he couldn’t move, and then he was whipped, branded or stoned, etc.
• Immurement:  Here, the offender was constructed into a wall making it the most barbaric and painful form of execution of the death penalty.
• Crushing by elephant: Under this punishment, the offender was thrown under the feet of an intoxicated elephant for being crushed.
• Corporal Punishment

This type of punishment involves physical pain in the body. (Corporal is derived from the Latin corpus, meaning “physical body.”) It is also as old as capital punishment. Example: cutting off the hands of thieves; whipping and flogging etc. The aim of this punishment is not only to punish the offender but also to prevent the repetition of the offense. Some of it is:

• Flogging: This means ‘beating or whipping’ someone with a stick. In India, it was recognized under the Whipping Act of 1864, which was ultimately abolished in 1955.
• Mutilation: It involves causing severe damage to a person’s body, such as removing a part of the body. For example: In the ancient period, one or both of the hands of the offender were chopped off.
• Imprisonment:  The kind of imprisonment that you see today is absolutely different from the kind of imprisonment which was awarded in the ancient period. For example: tying the hands and legs of offenders & throwing them in a dry well.
• Social Punishment

It is a punishment in which a person is restricted from making any kind of contract with other persons or to move him to other places where he has no contract with the other persons who can help him in any manner otherwise, he is also liable for the punishment for it. Its forms are:

• Banishment: Banishment means to expel a person. In this, the criminals were transported to far-off places for isolation. This practice was abolished in 1955 and was replaced with “Imprisonment for life.”
• Social Boycott: It means an act of forcing a person to abstain from any kind of contact with other people in society.
• Financial Punishment

We can also refer to it as imposing for fine. It was a common way of punishment that was generally assigned for the breach of traffic rules, revenue laws, & petty crimes. IPC, even today, prescribes fines as punishment.

Theory of Punishment in India

There are various theories of punishment in India applicable in the present era out which the reformative theory is followed in India:

1. Retributive Theory of punishment

The Retributive Theory of Punishment, or the ‘Theory of Vengeance’, as many people in the society would perceive it as, is the most basic, yet inconsiderate theory of inflicting a penal sentence over a perpetrator. It is based on a very small doctrine, namely the doctrine of Lex talionis, which if translated, means ‘an eye for an eye’. Now, if looked at from the perspective of very serious and heinous offences, like the Delhi gang rape case, people may feel that it is better to inflict such retributive punishments, so as to ensure that a deterrent is set across the society, in order to prevent such crimes in the near future.

• Doctrine of Societal Personification can be stated as-

‘When a member of the society is subjected to a very heinous crime, as a result of which, the whole society, as if it were a natural person, considers the offence to be inflicted upon itself, comes to the defence of that person either by way of demanding justice or by conducting the same on its own, the society is said to be personified.’

It means that the society, whenever a heinous crime of an extreme form is committed, assumes the form of a natural person and behaves in a collective manner so as to get justice.

Eg: The country-wide protests for the Delhi gang rape case, the current Hathras rape case, etc.

• Doctrine of Correctional Vengeance maybe stated as-

‘When the society, in a fit to get justice, demands the concerned authorities to inflict vengeful (as painful as the original act, or even more) punishments upon the victim for creating a deterrent, it is said to exhibit correctional vengeance.’

Understanding Retributive Theory of Punishment:

‘The concept of retributive justice has been used in a variety of ways, but it is best understood as that form of justice committed to the following three principles:

• That those who commit certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a proportionate punishment;
• That it is intrinsically morally good—good without reference to any other goods that might arise—if some legitimate punisher gives them the punishment they deserve; and
• That it is morally impermissible intentionally to punish the innocent or to inflict disproportionately large punishments on wrongdoers.’

The above three principles clarify the needs for retributive justice even further.

The place where both Criminal Law as well as Moral Law meet, is the place where mostly the retributive punishments are generated.

E.g: If a person rapes someone, capital punishment maybe given as a retributive measure. If we literally give the person back what he did, i.e., sex, then it would be pleasurable rather than torturing for him. Now that we have understood briefly that how exactly the retributive punishment works, let us now move on to understand the ways in which Retributive Theory is displayed in the Hindu texts and scriptures.

Retributive Theory and the Hindu Scriptures:

The Hindu scriptures, particularly the Ramayana, Mahabharata and the Durga Saptashati, are primarily based on Retributive Theories but also, depict the ways in which one should proceed while applying them.

• Ramayana– In the Ramayana the whole story began from retribution itself. Lakshmana cut the nose of Raavan’s sister, because of which he kidnapped Sita. In order to rescue her and also to avenge her kidnapping, Ram went to kill Raavan. But, the major difference between the application of the retributive punishment between the two was that Raavan did not even give Ram a chance to repent for his younger brother’s act, but, Ram gave several chances to Raavan to correct his act.
• Mahabharata– Mahabharata, once again, is a very good example of how retributive punishment should be inflicted. The Pandavas had not started-off with the war right away. They had sent Shri Krishna as their messenger of peace a number of times to the Kauravas, but, they did not give in. Mahabharata, especially Shrimad Bhagvad Geeta, talks about the time when the retributive mode should be used. As we all know that Arjun was about to leave the battlefield as he was too scared to go against his own relatives, it was Krishna who said that ‘when all other paths close down, only then war is to be resorted to. Because if then the person refuses to fight, then it will inflict gross injustice upon the society at-large.’
• Durga Saptashati– In this too, Goddess Durga warns the various demons, i.e. Mahishasur and Shumbh-Nishumbh, repeatedly, before starting a killer spree upon them.

Case Laws:

• 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.

2. Deterrent Theory of punishment

In Deterrent theory of punishment, the term “DETER” means to abstain from doing any wrongful act. The main aim of this theory is to “deter” (to prevent) the criminals from attempting any crime or repeating the same crime in future. So, it states that deterring crime by creating a fear is the objective; to set or establish an example for the individuals or the whole society by punishing the criminal. That simply means, according to this theory if someone commits any crime and he/she is punished by a severe punishment, then, it may result maybe 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 deterrent theory of punishment is utilitarian in nature. For a better understanding we can say like, ‘The man is punished not only because he has done a wrongful act, but also in order to ensure the crime may not be committed.’ It is best expressed in the word of Burnett, J who said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses may not be stolen”. = Through making the potential criminals realize that it doesn’t pay to commit a crime, the deterrent theory hopes to control the crime rate in the society.

Jurisprudential School of Thought:

The deterrent theory can be related to the sociological school of Jurisprudence. The sociological school creates a relationship between the society and law. It indicates law to be a social phenomenon, with a direct and/or indirect connection to society. One of the main aim of the deterrence is to establish an example for the individuals in the society by creating a fear of punishment.

The concept of deterrent theory can be simplifying to the research of philosophers such like Thomas Hobbes (1588-1678), Cesare Beccaria (1738-1794), Jeremy Bentham (1748-1832). These social contract thinkers provided the foundation of modern deterrence in criminology.

In the Hobbesian view, people generally pursue their self-interests, such as material gain, personal safety and social reputation and make enemies, not caring if they harm others in the process. Since people are determined to achieve their self-interests, the result is often conflict and resistance without a fitting Government to maintain safety. To avoid, people agree to give up their egocentricity as long as everyone does the same thing, approximately. This is termed as “Social Contract”. According to this social contract, he stated that individuals are punished for violating the social contract and deterrence is the reason for it to maintain the agreement between the State and the people, in the form of a social contract workable.

According to Cesare Beccaria, while discussing about punishments, the proportion of the crime and punishments should be equal for it to serve as a deterrence or have a deterring value.

According to J. Bentham, who is known as the founder of this theory, a hedonistic conception of man and that man as such would be deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says, if the evil of punishment exceeds the evil of the offence, the punishment will be unprofitable; he would have purchased exemption from one evil at the expense of another.

From the deterrent theories of Thomas Hobbes, Cesare Beccaria and J. Bentham, we came to know that the theory of deterrence consists of 3 major components. They are as follows:

• Severity: It indicates the degree of punishment. To prevent crime, criminal law must emphasize penalties to encourage citizen to obey the law. Excessively severe punishments are unjust. If the punishment is too severe it may stop individuals from committing any crime. And if the punishment is not severe enough, it will not deter criminals from committing a crime.
• Certainty: It means making sure that punishments must happen whenever a criminal act is committed. Philosopher Beccaria believed that if individuals know that their undesirable acts will be punished, then they will refrain from offending in the future.
• Celerity: The punishment for any crime must be swift in order to deter crime. The faster the punishment is awarded and imposed, it has more effect to deter crime.

Therefore, deterrence theorists believed that if punishment is severe, certain and swift, then a rational person will measure the gain or loss before committing any crime and as a result the person will be deterred or stopped from violating the law, if the loss is greater than the gain.

3. Preventive Theory of punishment

Preventive theory of punishment seeks to prevent prospective crimes by disabling the criminals. Main object of the preventive theory is transforming the criminal, either permanently or temporarily. Under this theory the criminals are punished by death sentence or life imprisonment etc.

Philosophical View of Preventive Theory:

Utilitarian’s such as Bentham, Mill and Austin of England supported the preventive theory of punishment due to its humanizing nature. Philosophy of preventive theory affirms that the preventive theory serves as an effective deterrent and also a successful preventive theory depends on the factors of promptness. The profounder of this theory held that the aim of punishment is to prevent the crimes. The crimes can be prevented when the criminal and his notorious activities are checked. The check is possible by disablement. The disablement may be of different types.

Confining inside the prison is a limited form of disablement, that is temporary and when it is an unlimited form of disablement, that is permanent. It suggests that imprisonment is the best mode of crime prevention, as it seeks to eliminate offenders from society, thus disabling them from repeating the crime. The death penalty is also based on this theory. This theory is another form of deterrent theory. One is to deter the society while another is to prevent the offender from committing the crime. From an overall study, we came to know that there are three most important ways of preventive punishment, they are as follows:

• By creating the fear of punishment.
• By disabling the criminal permanently or temporarily from committing any other crime.
• By way of reformation or making them a sober citizen of the society.

Case Laws:

• 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.

4. Incapacitation Theory of punishment

The word “incapacitation” means ‘to prevent the offence by punishing, so that the future generation fears to commit the criminal act.’ Incapacitation happens either by removing the person from the society, either temporarily, or permanently, or by some other method, which restricts him due to physical inability. One of the most common way of incapacitation is incarceration of the offenders, but in case of severe cases, capital punishments are also applied. The overall aim of incapacitation is preventing or restraining the danger in the future.

Definition:

“Incapacitation refers to the restriction of an individual’s freedoms and liberties that they would normally have in society.”

Purpose of Incapacitation Theory:

One of the primary purposes of this theory is removing the sufficiently dangerous persons from the society. The risk that is found to be posed by the offenders are largely a matter of inception. Therefore, if one country treats one offence in one way, another country will treat the same offence in a different way.

For example, in the U.S., they use incarceration to incapacitate offenders at a much higher rate, than in other countries. It has been seen that unlike the other theories of punishments like deterrence, rehabilitation and restitution, the theory of incapacitation simply rearranges the distribution of offenders in the society so that the rate of crime decreases in the society.

The main aim of the theory of incapacitation is to dissuade others from the offenders in the past, so that it is not followed by the future generation.

5. Compensatory Theory of punishment

The main look out 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.

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 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 a comprehensive legislation in respect of his compensation payable to victim of a crime.

6. Reformative Theory of punishment

This theory focuses on reforming the criminals and bringing the criminals back to society as good and law-abiding citizens. This is based on the Gandhian principle: Hate the sin, not the sinner.

This theory was successful to some extent in the case of juveniles. Some work or craftsmanship is imposed on the offender during his period of confinement with the aim that he will start a new life after his punishment is over.

Example of the reformative theory of punishment: Ankit, a prisoner, has learned pottery during his stay in jail. After his release from jail, he started a pottery business, earned his livelihood and lived happily.

Existing laws supporting the view of reformative theory

In progressive states, provision is made for the prevention of habitual offenders. Bortal schools have been set up. Provision is made for a system of probation for First Offenders. This theory is being growingly adopted in the case of Juvenile Offenders. The oldest legislation on the subject in India is the Reformatory Schools Act, 1890 which aimed at preventing the depraved and delinquent children from becoming confirmed criminals in the coming years. It applied to children under the age of 15 years.  The Reformatory Schools Act has been extensively amended in its application to the various States by State legislatures.

The government of India passed in 1960 the Children Act which applies to the Union Territories. This Act was amended in 1978. This amendment broadened the aim of the Children Act, 1960.

The Probation of Offenders Act, 1958 has been passed with a similar object in view. About the Act, the Supreme Court observed in Rattan Lal v. State of Punjab that the Actis a milestone in the progress of the modern liberal trend of reform in the field of penology.

In Musa Khan v. State of Maharashtra, the Supreme Court observed that this Act is a piece of social legislation which is meant to reform juvenile offenders with a view to prevent them from becoming hardened criminals by providing an educative and reformative treatment to them by the government.

Section 27 of the Criminal Procedure Code, 1973 provides that any offence not punishable with death or imprisonment for life committed by any person who, at the date when he appears or is brought before the court, is under the age of 16 years, may be tried by the court of a Chief Judicial Magistrate or by any court especially empowered under the Children Act,196 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders.

Section 360 of the Code of Criminal Procedure, 1973 empowers the court to order the release on probation of good conduct or after admonition.

Supporters Of Reformative Theory:-

• Physiologist
• Sociologist
• Psychologist