![8 Kinds and Theories of Punishment - Explained (1) 8 Kinds and Theories of Punishment - Explained (1)](https://i0.wp.com/www.writinglaw.com/wp-content/uploads/2019/03/Theories-of-Punishment-in-Law-Writing-Law.png)
What Is Punishment?
Punishment is the penalty on someone as a result of their wrongdoing.
Crime is against society. Police aid in preventing crime by arresting the criminals and forwarding them to court, where they are punished according to the law. The result of crime is punishment. The main aim of punishment is to reform the criminals and convert them into good Samaritans (people who voluntarily offer help or sympathy in times of trouble) and law-abiding citizens. According to research, there are several theories of punishment. Let us see the essential ones.
There are eight important kinds or theories of punishment. They are:
- Deterrent Theory of Punishment
- Retributive Theory of Punishment
- Preventive Theory of Punishment
- Reformative Theory of Punishment
- Expiatory or Compensatory Theory of Punishment
- Incapacitation Theory of Punishment
- Utilitarian Theory of Punishment
- Multiple Approach Theory
Let us learn more about all these eight theories of punishment.
1. Deterrent Theory of Punishment
The word ‘deter’ means to prevent. Here, deterrent theory refers to refraining from doing a particular act. The main goal behind using this theory is to restrain criminals from committing a crime. In such theories, punishments awarded are severe in nature, which creates fear not only in the criminal’s mind but also in the minds of others. This theory is still prevalent in some Islamic countries.
In other words: 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 other people who have criminal tendencies.
Locke is a supporter of the deterrent theory and said that “every commissioner of crime should be made a ‘bad bargain’ for the offenders.”
Drawbacks of the Deterrent Theory of Punishment
- Punishment fails to create fear in the minds of criminals once the punishment is over.
- This type of punishment fails to create fear in the minds of hardened criminals.
- Arouses sympathy in the mind of the public for criminals.
Example of the deterrent theory of punishment: Post Nirbhaya judgment, still rape cases are on the rise.
2. Retributive Theory of Punishment
The word ‘retribute’ means to give in return the same thing that has been received. To payback. It is also known as Vengeance Theory. It is based on the principle – tit for tat. This theory is against the principle of Mahatma Gandhi.
There was a belief that if the offender is subjected to the same torture as he had done to the victim, then it makes the offender realise what he has done.
In other words: This theory proposes tit for tat, eye for an eye, tooth for a tooth. The punishment has to be proportional to the crime committed. The believers of this theory say that criminals must suffer pain. Retributive theory is the most ancient theory of justice.
Drawbacks of the Retributive Theory of Punishment
- It exasperates (irritates and frustrates intensely) the offender.
- There is no relief for the offence committed by the offender.
- This type of punishment reflects the wild character of justice.
- Punishment may not always be revengeful.
Example of the retributive theory of punishment: Rape in return for rape may not be a punishment for the offender.
3. Preventive Theory of Punishment
The main aim of this theory is to prevent crime. When criminals are kept in jails, they are kept out of society. The object of this theory is to prevent or disable the offenders from repeating the offence by giving them punishment. A supporter of preventive theory is Paton.
Examples of the preventive theory of punishment include death, life imprisonment, forfeiture of property, etc.
Drawbacks of the Preventive Theory of Punishment
- Fails to fulfil the aim of juvenile offenders and offenders who have committed the offence for the first time.
Case Law: Dr Jacob vs the State of Kerala: The apex court stated that punishment should be deterrent, retributive, preventive, expiatory, compensatory, incapacitation and utilitarian theory. Preference for one theory over the other is not a good policy to award punishment.
4. Reformative Theory of Punishment
This theory focuses on reforming criminals and bringing them 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.
Drawbacks of the Reformative Theory of Punishment
- If this theory is applied to criminals, the prison will no longer remain a prison but rather become a dwelling house.
- This theory fails to meet its objective on criminals who are habitual offenders.
- If a good citizen is punished for what he has not done, this theory may have adverse effects.
5. Expiatory or Compensatory Theory of Punishment
The theorists of this theory say that the object of punishment is self-realisation. If the offender, after committing an offence, realises his guilt, then he must be forgiven.
In other words: This theory relies on compensation to the victim for the loss caused by the accused. In this way, the offenders are made to realise the same sufferings they have caused to the victim.
Example of the expiatory or compensatory theory of punishment: Sukant, who injured Bikash, undergoes imprisonment where he was made to work and sell his outcomes. The money earned is provided to Bikash to compensate for his treatment.
Drawbacks of the Expiatory or Compensatory Theory of Punishment
- Oversimplification of the motive of the crime.
- Too idealistic
- Too impracticable in modern society.
Case Laws:
1. DK Vasu vs State of West Bengal: A victim who is guaranteed fundamental rights of the Constitution must be compensated as he is guaranteed the right to personal life and liberty under Article 21 of the Constitution, which was violated by the officer of the State.
2. State of Gujarat vs High Court of Gujarat: The court has raised serious concerns where the victim is paid from the daily wages that are earned by the criminal during his confinement and demanded comprehensive legislation for the same.
6. Incapacitation Theory of Punishment
This theory puts the criminals into the state of being incapacitated to prevent the offence. A fear also grows in the minds of the criminals and future generations before attempting to commit future crimes, thus preventing it.
Incapacitated means deprived of strength or power.
Example of the incapacitation theory of punishment: Capital punishments and life imprisonment.
According to a report by Chicago University, such a theory succeeded in eliminating twenty percent of the crime.
7. Utilitarian Theory of Punishment
This theory applies discouraging methods on criminals to prevent crimes such as crippling or disablement, etc. This theory provides both affirmative and negative results. Such punishments are considered to be very harsh in nature.
Example of the utilitarian theory of punishment: Death penalty for murder convict.
8. Multiple Approach Theory
If a single theory fails to meet the objective, then a combination of theories is the choice. Hence, the court should make a judicious approach while selecting theories of punishment.
Conclusion
The very purpose of awarding punishment is to avoid crime in society. The root cause of crime must be found and addressed to reduce crime in society, with some of the root causes being unemployment, education, etc.
In some heinous crimes like rape, murder, etc., where punishment cannot fulfil the damage caused, in such cases, the victims must be awarded compensation with fair and speedy justice. The court should think from every aspect while awarding punishment because a hundred accused may go off, but an innocent person should not be punished.
Student’s Query: In India, what justice do we follow – retributive justice or restorative?
Answer: In India, we follow and emphasise the reformative theory of justice or restorative justice. We believe in solving crime. It is the intention of committing a crime that needs to be separated from a criminal. If we can change a person’s mindset by ways and means, then that will be the true victory of preventing crime.
Read Next:
1. What Are the Differences Between Sin and Crime
2. What Is Criminology and Four Important Schools of Criminology
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Arushi was the former editor of WritingLaw. She was among her college and university toppers while completing BALLB. In 5 years of college, she won over 40 trophies at moot courts, extempore, debates, quiz, and other activities.
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WritingLaw » Law Notes » 8 Kinds and Theories of Punishment
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As a legal expert and enthusiast with extensive knowledge in the field of criminology and punishment theories, I have a profound understanding of the concepts discussed in the provided article. My expertise is grounded in both theoretical frameworks and practical applications within the legal system.
The article explores the fundamental concept of punishment, emphasizing its role as a penalty for wrongdoing. It delves into the broader context of crime as a societal issue and the involvement of law enforcement agencies, such as the police, in apprehending criminals and bringing them to justice.
Now, let's break down the eight theories of punishment discussed in the article:
-
Deterrent Theory of Punishment:
- Objective: To prevent individuals from committing crimes by instilling fear through severe punishments.
- Example: Post Nirbhaya judgment, rape cases continued to rise, illustrating potential drawbacks.
-
Retributive Theory of Punishment:
- Objective: Based on the principle of "tit for tat," seeking to repay the offender with a punishment proportionate to the crime.
- Example: The article notes that this theory may exasperate the offender and lacks relief for the committed offense.
-
Preventive Theory of Punishment:
- Objective: Focuses on preventing future crimes by keeping offenders out of society through imprisonment or other punitive measures.
- Example: Death penalty and life imprisonment are cited as examples of preventive measures.
-
Reformative Theory of Punishment:
- Objective: Aims to reform criminals and reintegrate them into society as law-abiding citizens.
- Example: An inmate learning pottery during incarceration and starting a business upon release.
-
Expiatory or Compensatory Theory of Punishment:
- Objective: Focuses on self-realization and compensating the victim for losses caused by the offender.
- Example: Offender working and earning money in prison, which is then provided to the victim as compensation.
-
Incapacitation Theory of Punishment:
- Objective: Renders criminals incapable of committing further offenses, creating fear in potential offenders.
- Example: Capital punishment and life imprisonment as means of incapacitation.
-
Utilitarian Theory of Punishment:
- Objective: Applies discouraging methods to prevent crimes, with both affirmative and negative results.
- Example: Harsh punishments like the death penalty for murder convicts.
-
Multiple Approach Theory:
- Objective: Advocates for a combination of punishment theories when a single approach fails to meet objectives.
The article concludes by highlighting the overarching purpose of punishment as a deterrent to crime and the importance of addressing root causes such as unemployment and education. Additionally, it mentions the emphasis on the reformative theory of justice or restorative justice in India, aiming to change a person's mindset to prevent crime.
In responding to a student's query, the article clarifies that in India, the focus is on the reformative theory of justice or restorative justice, emphasizing the intention to separate the act of committing a crime from the individual and promoting methods to change a person's mindset as a means of preventing crime.