Origin Of Punishment

The idea of punishment has been in existence since past many centuries. It was granted by autonomous beings to deprive the offender of his source of enjoyment or to inflict pain on the offender. Since time immemorial this concept is in existence and even today studies by various theorists, jurists and scholars are in process to extract and understand the true meaning of punishment. The society decides the kind of punishment to be inflicted upon the offender. But the severity of punishments has reduced drastically in today's world because of continuous debunking.

Punishment is the result of the act of misdeed of the offender which causes him sufferings or loss. In the arena of criminal law, punishment is awarded due to the wrongful intension involved in crime. It is different from civil law as that tends to compensate the injured party by awarding damages unlike punishing the wrongdoer in criminal law.

But to define crime itself, I quote Salmond's definition of crime:
Crime is an act deemed by law to be harmful for the society for the whole though its immediate victim is an individual.[1]

Types of Punishment:

1. Deterrent theory of punishment:
   It aims at stopping people from indulging in crimes ie. deterring individuals from committing offences.
    
2. Retributive theory of punishment:
   In this theory, the moral satisfaction received after inflicting the punishment is given utmost importance and suggests that the offender should pay for his ill deeds. It inflicts pain on the criminal and prevents private vengeance.
    
3. Preventive theory of punishment:
   This aims at preventing crimes by impairing criminals permanently or temporarily.
    
4. Reformative theory of punishment:
   This theory aims at reforming the criminal into a law- abiding citizen of a society. It is also known as rehabilitative theory of punishment.

Deterrent Theory Of Punishment

The term deterrent, comes from the word deter which aims at preventing criminals or individuals from committing the offence of any crime. This keeps in mind that an individuals probability of committing any crime is future is lowered and it will generate a fear in their minds so that they are aware of the consequences of their criminal act. The idea of Deterrent theory of punishment is a Utopian idea.

This can be understood in the words of Dr. Bernett J, who said:
Thou art to be hanged not for having stolen a horse, but in order that other horses may not be stolen�. This mean that deterrent theory of punishment aims not only at punishing a criminal but ensuring that the same kind of act is not repeated again in the future.

1. Relation of Deterrence and Jurisprudential Thought
   Deterrent theory of punishment is related to sociological school and explains the relation between law and society by explaining how law behaves like a social-phenomena with both direct and indirect interrelatedness. The idea of the modern deterrence in the field of criminology was given by social contract thinkers like Thomas Hobbes, Jeremy Bentham and Cesare Beccaria.
   
   According to Hobbes, people are driven due to their self-interests and maintain their own personal safety, social relations and reputation. Since it is the hunger for ones own personal drive, it leads to anarchy and conflict in the absence of an established Government. As a result, according to Thomas Hobbes, to bring an end to this chaotic and egocentric society, punishment was introduced to make individuals agree to the terms of the state and so that an order is maintained in the society. He termed this as the social contact and used the method of deterrence to make people maintain the agreement between state and its people.
   
   Cesare Beccaria says that crime and punishment should both have a proportional deterring and deterrence value.
   
   Jeremy Bentham is said to be the founder of this school of thought wherein he gives us a hedonistic view of an individual and says that a man will pull himself back from committing an offence only if punishment imposed is severe in nature and swiftly given. According to Bentham, the evil caused due to the punishment should be less than the evil caused due to the actual harm otherwise punishment loses its essence and strength.[2]
   
   From the view point of these Social Contract theorists, three major components can be derived:
   • Severity:
     This talks about the degree of punishment but at the same time says that more severe punishments can have a negative impact on the offender while less sever punishments may encourage offenders to indulge more in crimes.
      
   • Certainty:
     This ensures that punishments follows whenever there is an occurrence of a criminal act. According to Professor Beccaria, if an individual is made aware of the consequences of his undesirable acts, he will refrain from performing those in the future. This is achieved when individuals know that the system is strong enough to punish them. The effectiveness of deterrence is improved by better communication.
      
   • Celerity:
     This means that swiftness is important to deter crime. Crime will be deterred if the punishment is awarded quickly and rapidly. This means that swiftness is important to deter crime. Crime will be deterred if the punishment is awarded quickly and rapidly.
   
   Thus, a person with reasonable intelligence will measure these three components in accordance with the gain or loss incurred and will thus be deterred from committing crimes in future.
   According to Austin, Law is the command of the Sovereign and he describes three important things in his Imperative Theory:
   1. Command
   2. Sanction
   3. Sovereign
   Austin explains in his theory that people follow rules so as to escape from receiving punishments. This fear helps them deter from committing undesirable offences. Old Hindu scriptures also mention some severe punishments like public hanging, immersing individuals in boiling water or pouring hot oil on their body. Even the Elizabethan period talks about some barbaric forms to punishment that were inflicted to stop crimes.
    
2. Case Laws:
   In State of Maharashtra v. Mansing, the accused was sentenced to life imprisonment for raping and murdering a minor girl of 8 years of age. [3]
   
   Due to certain factors, death sentence has been converted to rigorous life imprisonment and have become constitutional grounds. Some factors resulting in this are mercy petition, delay caused in executing the death sentence, appeal etc.[4]
   
   In Phul Singh v. State of Haryana, a woman aged 24 was raped by a 22 year old boy in the early morning hours. The case was appealed in the sessions court which announced four year rigorous imprisonment for the accused. But the supreme court reduced it to two years as the accused was not a regular offender. Thus, by reducing the punishment, the supreme court blended correction with deterrence.[6]
    
3. Types of Deterrence:
   According to the American criminologist, Edwin Sutherland, deterrence is divided into two sub heads:
   
   • Specific Deterrence:
     It aims at preventing the offender to commit any further crimes in future because he/she fears the punishment that may be of a similar or severe nature. Earlier deterrent form of punishment was given in the form of incapacitation which made it impossible for them to commit that crime again. Eg: the rapists were castrated, the hands of thieves and pick-pocketers were amputated and so on.
      
   • General Deterrence:
     This applies to the whole society and public at large. A deep fear will be inspired into people who witness the punishment being meted out to an offender. Thus, it believes that rational beings will avoid indulging in crimes so as to avoid pain after watching the evil-doers receive severe punishments.

Preventive Theory Of Punishment:

Preventive theory does not aim at avenging crimes but focusses on preventing crimes. It depends upon promptness and any delay renders the punishment ineffective. It is a philosophy where the punishment acts like a deterrent and at the same time like an efficient preventive measure.[7]

Three ways of preventive punishment are as follows:

1. Generation of fear of punishment
2. Disabling the offender temporarily or even permanently from committing any offence
3. By reforming or making the citizens sober.

 

1. Case Laws:
   Surjit Singh v. State of Punjab talks about an accused policeman who entered the deceaseds house to commit rape but was prevented from doing so as the deceaseds sons shouted out for help. The accused for held guilty under Sec. 450 of the IPC because death penalty is thought to be a temporary form of punishment.[5]
   
   The Supreme court in this case held that the aim punishment should be reformation, deterrence and prevention. All theories of punishment should be used independently to correct and make the individuals of a society sober. This case upheld that prevention of any form of crime should be the major aim of law and society both and it cannot be ignored. [8]

Relation Between Preventive And Deterrent Theory Of Punishment

According to Justice Holmes, in Preventive Theory of Punishment, crime is prevented by disabling the offender which is an idea also reflected under Deterrent Theory of Punishment. Many Utilitarians like Bentham, Austin and Mill gave their support to preventive theory because of its humanizing ability. Both these theories are closely interlinked as Specific form of deterrence prevents prospective crimes from being committed and ensures that individuals who have already committed crimes do not indulge in such undesirable acts again.

Development of prison is an outcome of the preventive theory which aims at preventing offenders from committing similar or different offences. It focuses on more humane ways of punishing individuals but when it is compared to deterrent theory, it states that capital punishment is a very harsh way of punishing and no person has the right to take away the lives of others. Best mode of crime prevention according to the preventive theory is imprisonment as if effectively helps in disabling criminals from repeating the offence.

Since death penalty is also a part of preventive theory, it can successfully be said that this is another part of deterrence. One focusses to deter the whole of the society while the other prevents the evil-doer from committing the offence.

A person cannot be punished in order to deter others from committing the same offence. Deterrent theory states how sometimes the effect of punishment deters the offender himself so as to see that he is not used as a means to achieve the good of others. It works on the principle that an individual will only get punished when that punishment serves as a boon for the society as a whole. In other words, it will be successful when there is increase in pleasure for the society by hindering future prospects of crimes.

Preventive theory explains how its aim is to prevent crime and not simply revenge for the offence. Its major aim is to safeguard the society from the criminal by putting him behind bars and consequently eliminate the potential dander caused due to their presence. Under deterrence, it focusses on creating a penal discipline which gives severe punishments to refrain any person from doing offences in future.[9]

1. Benthams Ideas
   In Deterrent theory of punishment, Bentham propagated that any ill doing should be called as an act of the past so that it is used as an opportunity to prevent offences in future. The sanctions would be more credible if more criminals are being caught and exposed to punishment. According to Glanville Williams, punishment is the ultimate object of punishment.
   
   Under Preventive theory, the target is to prevent the victim from the criminal and it depends upon the efficiency and promptness of the punishments. Any form of lethargy in delivering punishment, renders it incapable to achieve the desired goal.
   
   In the Nirbhaya gang rape case [10]Nirbhaya was brutally raped and her body was mutilated. The rapists were given a death sentence and justice was finally served after seven long years. But the question that is still upheld is that did death sentence reduce the heinous crimes like rape from occurring? The objective of deterrent theory is to prevent or deter crime by establishing fear in the minds of the society or by creating an example before individuals and since death penalty is an extreme form of punishment, it has the power to stop such crimes from being committed in future.
    
2. Views of The Indian Law Commission (Deterrent Theory)
   The Law Commission gives reasons for retention of death penalties. To protect the life of prison staff and police, death sentence becomes imperative; Offenders of heinous crimes should be hanged to prevent them from further committing such crimes. In India, death sentence is awarded in rarest of the rare cases [11] and even Bentham justifies it that it should be awarded only when sanctity of human life is grossly violated. The state should have the power to execute the violent criminals to uphold the greater social value and to preserve the respect of authority of law.
    
3. Compensatory theory under Preventive theory of punishment
   Under this, the entire focus is to either punish the offender or seek rehabilitation for his goodwill. The offender has to compensate the victim and the victim is compensated by the state as well as it failed to give him the desired protection. In 1985, the UN general Assembly adopted the Basic Principles of Justice for victims of Crime and Abuse of power which is called as Magna Carter of right of victims. It states that the government along with criminal sanctions, should also consider restitution as a sentencing option.
   
   Jeremy Bentham also describes the scope of satisfactory remedies wherein the scope of criminal justice should also contain compensatory remedies. Sometimes, the accused does not compile the ordered payment of compensation hence injustice. Further, the law does not give any provision for imposing penalty in non -compliance. In State of Gujarat & Anr v. Honble High Court of Gujarat, the court held that the accused should compensate the victims family and the victim through the wages earned either in the prison or through past savings.[13]
    
4. Views of the Indian Law Commission (Preventive Theory)
   It said that if any victim gets compensated for his injuries, then he is fortunate. [14] It further stated that mere punishment does not fulfil the goal although it might exhaust the main function of law. The Malimath Committee of law stated that if the victim is fully satisfied then it would make the criminal justice system more efficient.
   
   Under Section 357(1) of the CrPC., the court can grant to the victim an amount out of the fine which is imposed as part of the punishment. Courts have the discretionary power to ask for compensation but it is seldom inflicted in addition to imprisonment.
   
   In Sarwan Singh v. State of Punjab, the court rightly observed that if the accused if is in a fine monetary position, he can always compensate the victim and the court has no reason for not asking for it as well [15]Supreme Court in another case held that the accused rapist has to compensate the victim even if he is not convicted. [16]
    
5. Criticisms of Deterrent and Preventive Theories of Punishment
   Under deterrent theory, relief is provided only till when the offender is imprisoned because crimes motive cannot be destroyed by the fear factor. It hardens the criminals as they might become accustomed to the form of punishment. In cases of pre-mediated crimes, the offender might also know the consequences of his acts and thus fail to provide a permanent relief. Sometimes, the critics point out that the punishments are more severe than the offence committed which makes it unjust for the criminal whereas punishments should be proportional to the harm caused.
   
   Deterrence theory also lacks moral dimension and convicts are not given punishments like social condemnation etc. Because they are not incorporated under deterrence theory. In a few instances, the constitution also fails to give a detailed conduct for the maximum punishment that can be inflicted and hence gives way to ambiguities. There must be a law for every crime and punishment- Nullum Crimen Sine Lege, Nulla Poena Sine Lege.
   
   Similarly, under Preventive theory, the offender is used as a means to achieve the society's wellbeing that serves as an end. It is defective in a way that it uses a criminal to teach a lesson to everyone in the society. Sometimes, punishments like forfeiture and incarceration prove to be undesirable for first time offenders and juveniles. Offenders are derived of their liberty and are often looked down upon. Offenders are although willing to live like a normal citizen but to ensure the well- being of other, his desires of self- supporting life are curbed.

Conclusion
The deterrent and preventive theories aim at reducing the crime rate. Deterrent on one hand focusses on warning the society on the whole that crime committed shall not pay whereas Preventive theory aims at impairing the actual offender from performing the harm. The Deterrent theory works in the direction to tell the offenders that every evil-doing is followed by a severe form of punishment and so one must deter from committing crimes. The Preventive theory of the other hand points out that the wrongdoers physical powers are disabled to indulge in any other criminal offences in the future.

It can be said that both these theories are interlinked. While deterrence stops offenders from indulging in prospective crimes; the other theory focusses at indisposing the malefactor permanently or even temporarily and transforming him by re-education, that fulfils the purpose of fear of punishment.

Justification of any kind of punishment is a difficult jurisprudential issue and punishments cannot be too brutal or too moderate. If all the reliance is placed on any one theory, then it would risk humanity. They should be used independently in accordance with the merit of the case. Total elimination of crime from society is impossible and a utopian idea. Punishment would turn to be certain if the system of implementing laws is efficient and there is simplicity in its interpretation and at the same time it should be proportional as well as uniform.

End Notes:

1. Hemant More, What is Crime? The Fact Factor, 21st March, 2020
2. Diva Rai, Theories of Punishment- a thorough study, iblog pleaders, 19th November 2020
3. State of Maharashtra v. Mansing ,8 (2005) 3 SCC 131.
4. Triveniben v. State of Gujarat, AIR 1989 SC 142.
5. Surjit Singh v. State of Punjab, (2011) 15 SCC 187.
6. Phul Singh v. State of Haryana, (1979)4 SCC 413.
7. Charan Singh and Ravinder Singh Ghumman, Capital Punishment and Theories of Punishment:Explained Latest Law, https://www.latestlaws.com/articles/capital-punishment-and-theories-of-punishment-explained/
8. Dr. Jacob George v. State of Kerala, (1994) 3 SCC 430
9. JSS Law College, Critical Analysis of Theories of Punishment, ISSN 232-4171, 1, http://jsslawcollege.in/wp-content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-PUNISHMENT1.pdf .
10. Mukesh & Anr. v. State for NCT of Delhi & Ors, (2017) 6 SCC 1.
11. Bachan Singh v. State of Punjab, AIR 1980 SC 89.
12. The UN General Assembly, A/RES/40/34, 1985.
13. State of Gujarat & Anr v. Honble High Court of Gujarat, (1998) 7 SCC 392.
14. Vol II, Law Commission of India Report No. 42- Indian Penal Code, June 1947.
15. Sarwan Singh v. State of Punjab, (1978) 3 SCC 799.
16. Delhi Domestic Working Womens Forum v. Union of India and Ors, (1995) 1 SCC 15.