RESEARCH WORK

ANALYSIS OF 5 THEORIES OF PUNISHMENT

&

CRITICISM OF THE THEORY BASED ON GANDHIAN PRINCIPLES

 5 THEORIES OF PUNISHMENT
→ Deterrent Theory
→ Preventive Theory
→ Reformative Theory
→ Retributive Theory
→ Theory of Compensation

 CRITICISM OF THE THEORY BASED ON GANDHIAN

PRINCIPLES

SUBMITTED BY:
NEHA SHARMA
 5 THEORIES OF PUNISHMENT

As we know, punishment is the penalty on someone as a result of their wrongdoing and in our
criminal justice system, there are 5 primary theories of Punishment.

1. Deterrent Theory

2. Preventive Theory

3. Reformative Theory

4. Retributive Theory

5. Theory of Compensation

 DETERRENT THEORY:

→ It has been a popular notion throughout the ages that the fear of punishment can eliminate the
undesirable behaviour. So, the object of this theory is not only to prevent the wrongdoer from
doing a wrong subsequently but also to make him an example for society and such other
person who have criminal tendencies.

→ One of the primitive methods of punishments believes in the fact that if severe punishments
were inflicted on the offender, then this would deter him from repeating that crime. It is
assumed that those who commit a crime, derive a mental satisfaction or a feeling of
enjoyment in the act. To neutralize this inclination of the mind, punishment inflicts equal
quantum of suffering on the offender so that it is no longer attractive for him to carry out such
committal of crimes.

→ Pleasure and pain are two physical feelings or sensation that nature has provided to mankind,
to enable him to do certain things or to desist from certain things, or to undo wrong things
previously done by him. In social life punishment introduces the element of 'pain' to correct
the excess action of a person carried out by the impulse (pleasure) of his mind. We all like
 very much to seize opportunities, but abhor when we face threats. But in reality- pain, threat
or challenges actually strengthens and purifies a man and so an organization.1

→ Jeremy Bentham is referred to as the father of this theory. His theory was based on a
hedonistic conception of man. According to him such a hedonistic person will be committed
to seek pleasure by repeatedly committing crimes and that he can only be deterred from
committing those crimes if the punishment could be applied swiftly, severely and certainly.
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 will have purchased exemption from
one evil at the expense of another.

→ When evaluating whether deterrence works or not, it is important to differentiate between

general deterrence and specific deterrence. General deterrence is the idea that every person
punished by the law serves as an example to others contemplating the same unlawful act.
Specific deterrence is the idea that the individuals punished by the law will not commit their
crimes again because they “learned a lesson.”

→ Critics of deterrence theory point to high recidivism rates as proof that the theory does not
work. Recidivism means a relapse into crime. In other words, those who are punished by the
criminal justice system tend to reoffend at a very high rate. Some critics also argue that
rational choice theory does not work. They argue that such things as crimes of passion and
crimes committed by those under the influence of drugs and alcohol are not the product of a
rational cost-benefit analysis.

 PREVENTIVE THEORY:

→ As the name suggests, this theory aims to prevent the crime rather than avenging it, by
disabling the offender through methods such as imprisonment, forfeiture or suspension of
licence etc. The idea of punishing the offender is same as that of the deterrent theory but here
the difference is that this theory looks at the punishments from a humane perspective.

→ According to the preventive philosophy, this theory of punishment serves as an effective

deterrent and also as a preventive measure. Here the aim of punishment is to prevent others
from committing such similar crimes.

1
Shaswata Dutta, “Theories of Punishment-A socio-legal view”, Available at:
http://www.legalserviceindia.com/articles/pun_theo.htm
→ The development of institution of prisons is an important outcome of preventive theory of
punishment.

→ The effectiveness of the preventive theory depends on the factor of promptness, if there is a
delay in the inquiry or investigation, the punishment or sanction would be rendered
ineffective.2

→ This mode of punishment can be classified when the fear of punishment is instilled upon
humans, when the criminal is disabled from committing any crime either temporarily or
permanently, and by the reformation or re-education of a criminal. Now, it can be said that
this theory resembles to deterrent (specific deterrence, to be precise) as well as rehabilitative
theory.

→ In the case of Dr. Jacob George v. State of Kerela3, it was stated that the purpose of
punishment is four-fold. First is retribution, which is for vengeance. Second is preventive
which is an eye opener for the criminal. Third is deterrence which provides punishment and
the fourth is reformation. One theory cannot be preferred over another, there should be
independent usage of each theory of punishment and should combined according to the
merits of the case.

 REFORMATIVE THEORY:

→ According to Reformative theory, the object of punishment should be the reform of the
criminal, through the method of individualization. It is based on the humanistic principle that
even if an offender commits a crime, he does not cease to be a human being. So this is not a
punishment virtually but a rehabilitative process.

→ According to the supporters of the Reformative theory, punishment is not imposed as a means
for the benefit of others. Rather, punishment is given to educate or reform the offender
himself. Here, the crime committed by the criminal is an end, not a means as in the Deterrent
theory. This view is commonly accepted in the present time. Kind treatment sometimes
produces a better result than punishment. It may be more favourable to the reformation of the
criminal. Crime is a kind of disease and the criminal should be treated well so that he may be
able to recover from this disease.

2
CRITICAL ANALYSIS OF THEORIES OF PUNISHMENT, Available at: http://jsslawcollege.in/wp-
content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-PUNISHMENT1.pdf 
3
1994 C.r.L.J. 3851 SC
→ The reformative theory suggests that punishment is only justiciable if it looks to the future
and not to the past. Thus supporters of this theory justify prisonisation not solely for the
purpose of isolating criminals and eliminating them from society, but to bring about a change
in their mental attitude through effective measures of reformation during the term of their
sentence.

→ The Reformative theory is supported by criminology. Criminology regards every crime as a

pathological phenomenon a mild form of insanity, an innate or acquired physiological defect.
There are some crimes which are due to willful violation of the moral law by normal persons.
Such criminals should be punished adequately to vindicate the authority of the moral law.

→ The early criminal justice system did not recognize any distinction between adults & juvenile
offenders so far punishments were concerned. It is only with the popularity of Reformative
theory of punishment, it was realized that the youngsters between a certain age group should
be differently treated in the matter of punishment because they are easily attracted to
temptations of life & thus lend into criminality without any real intention of committing a
crime.

→ In India, the first attempt to separate juvenile offenders from adult prisoners was made in
1890 when Reformatory School Act was passed. The young offenders were lodged in these
institutions which imparted industrial training to them for their rehabilitation. By this act, the
aim was to prevent young offenders to become professional criminals in future. Later on, the
Reformative School Act 1890 was replaced by the Children Act 1960. However, this Act too
got amended in 1978 and finally it was replaced by Juvenile Justice Act 1986.

→ The Juvenile Justice Act was a comprehensive law on trial rehabilitation and reformation of
juvenile offenders. It is basically based on two fundamentals. One is that young offenders
should not be tried but corrected and other is that they should be treated. It aims to have a
healing effect on sentiments of juveniles so that he may be reformed as much as possible &
his tender faculties of mind may get proper guidance. The basis of juvenile justice is the
rehabilitation & reform of the delinquent child under the age of 16 years of age and max
punishment upto 3 yrs. only. So, this Reformative theory favours the humanitarian sentiments
of the age.

→ In juveniles also, this reformation aims at transforming the criminal minds in a way that the
inmates of these reformative rehabilitative institutions can lead the life of a normal citizen.
But if we see the cons of this reformative technique in case of juveniles then suppose for
 major crimes like rape, murder etc., the existing law of juveniles which considers Age factor,
is not creating a deterrent effect on the antisocial behaviour of youth. Juvenile offenders are
in believe that committing heinous crime is no issue as they will get away very little or no
punishment in name of reformation. Thus, this reformative theory is providing an undue
advantage to juveniles clearly. Because if law is talking about reforming the juvenile
offenders so that they can have a better life in future then law should also talk about the rights
of the victim. Justice must be given to the victim. The theory of reformation is helping
juvenile to reform but it is not helping the victim at all. The present juvenile system in India
is created on believe that juvenile offenders can be reformed and rehabilitated but the
question arises that whether there is a guarantee that those offenders will surely get reformed
and won’t show any anti-social kind of behaviour afterwards. So, the increasing rates of
juvenile crime in India is a big issue and need to be focused upon.

 RETRIBUTIVE THEORY:

→ Retribution means giving offenders the punishment they deserve. It is often proposed as the
‘tit for tat’ or ‘an eye for an eye’ theory of punishment. However most adherents to this
theory believes that the punishment should fir the offense. Here comes the idea of doctrine of
proportionality.

→ Retribution is the most ancient justification of punishment. Also, this theory signifies that no
person shall be arrested unless that person has broken the law.

→ Retributivism is backward-looking. Retributivists do not punish a criminal for what he or she

might do, but only punish for the crimes one has committed and in the amount the
person deserves. Retributivists do not concern themselves with the consequences of the acts
but only with the desert which has occurred. Desert refers to some demerit which has caused
the accused to commit a crime.

→ One view of retributivism put forward by Hegel in early nineteenth century saw the idea of
punishment to cancel, negate or annul the offender’s crime. In this view, the criminal rejects
the victim’s rights while committing a crime. If we leave the crime unpunished, it is regarded
as an innocent deed. But by punishing the criminal, the status quo ante crime is restored. This
view was taken forward by Hampton who said that by the very act of commission of crime,
the criminal fails to respect the victim’s value as a human being. Retributive punishment
vindicates “the value of victim denied by the wrongdoer’s action through the construction of
 an event that not only repudiates the action’s message of superiority over the victim but does
so in a way that confirms them as equal.” In this way punishment “can annul the message,
sent by the crime, that they are not equal in value”.4

→ No other punishment philosophy gives so much importance to actus reus (a guilty act)

and mens rea (a guilty state of mind). Under retribution, both elements of the crime must be
present before punishment can be imposed. In addition, offenders may be punished only for
the guilty acts they actually commit; those who plan a murder but succeed only in wounding
a victim, for example, should not be punished as harshly as those who actually carry out the
murder.

→ Of course, no punishment theory is without its critics. Many of those who criticize retribution
argue that the philosophy is outdated. As societies become more civilized, they should
outgrow the need or desire for revenge. Others note that punishing criminals just because
they have acted inappropriately does not address any underlying issues that may have led to
the crimes in the first place. Some offenders need treatment rather than punishment; without
treatment, the cycle of crime will continue unabated.

 THEORY OF COMPENSATION:

→ According to Theory of Compensation the object of punishment must not be merely to

prevent further crimes but also to compensate the victim of the Crime. A victim to a crime is
one who has suffered any loss because of some act or omission of the accused. The victim not
only suffers physical injuries but also psychological and financial hardships too. The plight of
a victim is only made worse by lengthy hearings and tedious proceedings of courts and
improper conduct of the police. The victim is literally traumatised again in the process of
seeking justice for the first injury. The legal guardians of the victim too come in the same
definition.

→ In the case of Hari Singh v. Sukhbir Singh5, the Supreme Court held, “It may be noted that
this power of Courts to award compensation is not ancillary to other sentences but it is in
addition thereto. This power was intended to do something to reassure the victim that he or
she is not forgotten in the criminal justice system. It is a measure of responding appropriately

4
Hariharan, “Retributive theory of punishment: A critical analysis”, Available at:
https://www.lawctopus.com/academike/retributive-theory-of-punishment-a-critical-analysis/
5
[1988] 4 SCC 551
 to crime as well of reconciling the victim with the offender. It is, to some extent, a
constructive approach to crimes. It is indeed a step forward in our criminal justice system.”

→ The law makers made provisions in the Criminal Procedure Code, 1973 under Section 357(3)
to enable the Courts to award any amount of compensation to the victims of a crime. This
was depicted in the landmark case of Hari Kisan6 where the Supreme Court had awarded
compensation as punishment, of Rs. 50,000. Not only this, the lower courts were asked and
advised to “exercise the power of awarding compensation to the victims of offences in such a
liberal way that the victims may not have to rush to the civil courts”7

→ Sometimes, the compensation given to the victim under the section 357 of the Criminal
Procedure Code is not enough for him to rehabilitate. Hence the Code was amended in 2008
on the recommendations of Law Commission and a new section, section 357A came into
existence. This section gives powers to Courts to direct the State to make schemes and hence
award compensations to victims.

→ The idea behind providing compensation is legal as well as humanitarian. The inability to
protect the person by the State makes it legally obligatory for the State to compensate him.
The victim goes through such pain and many times permanent loss of income only makes it
logical for him to be compensated.

CRITICISM OF THE THEORY BASED ON GANDHIAN PRINCIPES

→ According to Gandhi every breach is a crime and whoever breaches is a criminal. Now he
says there are two types of Criminals – political & non-political. He referred Politicals as
friend of State & non-politicals as enemy of Society. He further states that these criminals
must be kept in different compartmentalised system so that vice of one may not badly
influence the other. When he talked about jails though he said that jails should be converted
into reformation centres, he never advocated non-existence of jails in free India. The status of
jail staff must be like reformers or physician curing the bad out of the criminals. While
punishing the criminals this must be kept in mind that punishment must be for the purpose of
improving the society and thus the wrongdoers. Gandhi was of the opinion that don’t hurt
wrongdoers. He was of the opinion, hate sin and not the sinner.

6
[1998] AIR 2127 SC
7
ibid
→ He states that society commits crime and criminals commit it. It is the society which is the
main sinner. The reasoning he gives behind this is that the society is morally corrupt so they
have no authority to punish the wrongdoers as a result. And the emergence of criminals from
this society takes place precisely for the reason of their unfulfilled desires. They blame
corrupt system of the society for this & so adopt aggressive attitude towards it.

→ According to Mahatma Gandhi, Reformative theory also has some faults. He said “an eye for
an eye will turn the whole world blind”. However, others also believe that reformative theory
is outdated and indeed its true in some or the other way. But merely this was not Gandhi’s
only perspective of crimes, criminals and punishments.

→ The Gandhian approach of linking crime with disease and treating offenders as patients is one
analogy from which something could be learned and this thing has also been suggested in
various cases by various judges also, like in Mohammed Giasuddin v. State of Andhra
Pradesh8. His views on the subject were derived not only from his theory of non-violence but
also from his reflections on what imprisonment had done to him, to his political colleagues
and the ordinary criminals who sometimes shared prisons with him during his nearly six
years of incarceration in India and seven months in South Africa.

→ For Gandhi, there were only crimes, not criminals. To describe a man as a criminal was to
imply that criminality was inherent in his nature and that he was nothing more than a
criminal. A man committing a crime did not necessarily have a criminal disposition, both
because an isolated act did not signify a pattern, and also because a crime was often the result
of a number of factors only marginally related to the agent’s character. Even if he was in the
habit of committing crimes, he did not cease to be a human being endowed with a moral and
spiritual nature. He was always more than and must be separated from his actions and
tendencies. While his crimes should be condemned and punished, he deserved to be treated
with the respect and love due to a fellow human being. Rather than brutalise and degrade
him, punishment should help him reclaim his humanity. Men were responsible for one
another, and if one of them turned delinquent, the rest could not disown their equal
responsibility for his behavior. Even as he must search his conscience, they must probe theirs.

8
A.I.R. 1977 S.C.1926
→ The above-mentioned Gandhian Approach is quite radical and probably unacceptable to most
of us insofar as we recognize that at least some diseases have a not insignificant genetic
component or may arise, as it were, unbidden.

→ As the time elapsed since Gandhi composed his thoughts on this topic, things have in fact
changed, at least in this country, as opprobrium and informal sanctions are in place with
regard, for example, to morbid obesity, the eating of “junk food”, smoking and excessive
drinking, although the social messages in toto are undoubtedly “mixed” and contradictory in
the face, for instance, of mass media entertainment and advertising. This serves to weaken the
strength of Gandhi’s analogical comparison between disease and crime.

→ “In independence India of the non-violent type, there will be crime but no criminals. They
will not be punished. Crime is a disease like any other malady and is a product of the
prevalent social system. Therefore, all crime including murder will be treated as a disease.
Whether such as India will ever come into being is another question.”

Harijan, 5-5-46, p.124

This clearly seems to be irrelevant in the first place. If there will be crimes but no criminals,
then the criminals will be free to do whatever they want without any fear which will also
inspire others to indulge in committing such similar crimes. Also this will increase the crime
rates and people will not fear in committing any murder as Gandhiji said without thinking
about the suffering of the victim. Hence this is not a completely well-positioned principle to
which anyone should blindly rely upon and lead the country’s criminal justice system on this
basis.

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