Introduction

Mere denunciation of crime is not enough; it must be pushed to its logic end that crime does not
pay by punishing the offenders. Punishment means, “It is the redress that the commonwealth takes
against an offending member”1Punishment is some sort of social censure and not necessarily
involving physical pain. H Kelson in his General Theory of Law and State described “sanction is
socially organized consists in a deprivation of possession- life, freedom, or property”2 According
to Jeremy Bentham punishment is evil in the form of remedy which operates by fear. 3 Johan
Finnish has said that delinquent behavior of a person needs to be taught lesson not with melody
but with iron hand. “There is the need of almost every member of society to be taught what the
requirement of the law—the common path for pursuing the common good—actually is: and
{relatively!} Vivid drama of the apprehension, trial, and punishment of those who depart from that
stipulated common way”4

Various reasons justify punishment but criminal law as sanctions has one important object, is to
eradicate the self-help and private sanctions.5 Once society realizes that there is need of sanction,
it must be applied collectively, officially, legally and publicly.6 Different authors have offered
various theories of punishment but those can be broadly classified as non-utilitarian and
utilitarian.7 What distinguishes these theories is their focus and goals: utilitarian theories are
forward looking concerned with the future consequence of punishment; non-utilitarian theories are
backward looking, interested in the past acts and mental states; and mixed theories are both forward
and backward looking.

Punishment is awarded to reduce crimes and used as means to an end, is the claim of the utilitarian.
George Hegel and Immanuel Kant criticized and rejected the utility theory, presented the contrast
retributive theory of punishment, which is of non-utilitarian on the premises that punishment is not
means to an end but end in itself. This tug of war between the George Hegel and Immanuel Kant
on one side and Jeremy Bentham on the other side is carried even by 20th century scholars. In

1
Sethna, M.J. Society and the Criminal, (3rd Ed) Bombay: (N.M Tripathi Pvt Ltd. 1971) p.236.
2
Freeman, M.D.A.Lloyd’s Introduction to Jurisprudence, (17th Ed.), (London: Sweet & Maxwell Ltd. 2001). P..282.
3
Jeremy Bentham, The Theory of Legislation, (Bombay: N.M. Tripathi Private Ltd ,1995). p.167.
4
Johan Finnis, Natural Law and Natural Rights, Oxford: Clarendon Press, [2001] p.262.
5
Macklin Fleming.Of Crimes and Rights. (New York:W.W.Norton&Company.Inc.1978). p.102.
6
Ibid at 103.
7
htp/www.legalsutra,org/utilitarian-and-Kantian-concept-of-punishment. Accessed on 21/07/2017

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1949, Lord Denning appearing before the Royal Commission on ‘Capital Punishment’ expressed
the following view:

“The punishment inflicted for grave crimes should adequately reflect the revulsion felt by
the great majority of citizen for them. It is a mistake to consider the object of punishment as being
deterrent or reformative or preventive and nothing else … The ultimate justification of any
punishment is not that it is a deterrent, but that it is the emphatic denunciation by the community
of a crime: and from this point of view, there are some murders which, in the present state of public
opinion, demand the most emphatic denunciation of all namely the death penalty.8

Scholar of Criminal law Professor Glanville Williams of Cambridge University, applauses the
utilitarian opinion that punishment is either preventive or deterrent.9Both schools agree
punishment is essential but disagree in respect of its purpose. Utility doctrine has further classified
punishment as Preventive (Restraint), satisfactory (compensatory), reformative (Therapeutic or
corrective), and deterrent.10

Crime and Punishment

Crime is behaviour or action that is punishable by criminal law. A crime is a public, as opposed to
a moral, wrong; it is an offence committed against (and hence punishable by) the state or the
community at large. Many crimes are immoral, but not all actions considered immoral are illegal.
In different legal systems the forms of punishment may be different but it may be observed that all
arise out of some action or omission. All these constitute all moral as well as legal wrongs such as
murder, rape, littering, theft, trespass and many more. As crime is quite different in different
geographical area it is quite evident that the forms of punishment would vary as it was mentioned

8
Friedman,W., Law in a Changing Society, (2nd Ed.) (Delhi: Universal Law Publishing Co. Pvt. Ltd. 2008).p.225.
9
Glanville Williams., Textbook of Criminal Law. (2nd Ed.), (Bombay: N.M. Tripathi Private Ltd. 1983). p.126.
10
Jeremy Bentham., op. cit., p. 167.

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earlier that punishment as well as crime are socially determined. A type of action may be a crime
in one society but not in another. For example euthanasia is an offence in India, but in many
European coutries such as Holland it is legalized. But there are certain offences which are
recognized almost universally like murder.

Durkheim explains crime, as crime exists in every society which do and do not have laws, courts
and the police. He asserts that all societies have crime, since all societies involve a differentiation
between two kinds of actions, those that are allowed and those that are forbidden. He calls the
latter type criminal.

Law is the string that binds society, and he who attempts to break the string is a danger to the
society as a whole and dealt with sternly by the powerful arms of law. Punishment though most
times confused with imprisonment is something much different from it. Punishment though most
times confused only with sanctions may also be of moral nature like ostracism. Punishment,
whether legal or divine, needs justification. Because the justification of legal punishment has been
given greater consideration by philosophers than has the justification of divine punishment by
theologians, the philosophical concepts and 'theories of punishment, (i.e. the justifications) will be
used as a basis for considering divine punishment.

A complete definition will now be made in such a way as to include both legal and divine
punishment. A.Flew first suggests that punishment must be an evil, an unpleasantness to the
victim. J. Mabbot objects to the use of the word 'evil' in connection with punishment. He maintains
that 'evil' carries too much moral flavour and also that it suggests positive suffering. Mabbot states:
The world is a worse place the more evil there is in it and perhaps the more suffering. But it does
not seem to me necessarily a worse place whenever men are deprived of something they would
like to retain; and this is the essence of modern punishment. While deprivation may be a more
appropriate description of modern punishment this does not necessarily exempt it from being an
evil. Nor does the suggestion that 'evil' carries a moral flavour, for in fact the word punishment
itself carries a moral flavour. (Like 'evil', punishment is not in itself a moral term but it is suggested
that it usually occurs in an ethical context.) While we must eventually come to some conclusion

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as to whether punishment is an evil, it would be preferable at present to use, as does W. Moberly,
the slightly more neutral term 'ill'.

Both of these thinkers of punishment believe that the offender must be answerable for any wrong
that he has done. K. Baier explains punishment as law-making, penalisation, finding guilty,
pronouncing a sentence. In a legal context law-making is a necessary condition, but it is possible
to commit a wrongdoing intentionally although no law has been made, in fact it is because certain
acts are considered wrong that laws are made in the first place. What is important to note is that
punishment is a conditional act and cannot be isolated from its total context.

But Durkhaeim has a different approach to punishment altogether. He treats punishment as the
reaction of the society against a crime. According to him a if punishment be a proportionate
response to the harm caused to the society then the extent of the punishment inflicted must be
clearly sorted out. He also stressed on the point that punishment can never be calculated; it is an
intensely emotional- sense of outrage- the desire to exact punishment. He says, It is not the specific
nature or result of the offending action as such which matter, but he fact that the action transgresses
widely shared ad strongly held sentiments, whatever these might be in any particular case. He
explains that if punishment is a reaction of the society against the offenders then it is generally in
the form of an outrage or anger thus rather being reparative or reformative becomes punitive. This
approach of the society towards the criminals is what makes us treat them as outcasts and treated
as a deviant from the social norms. This two-fold approach has been criticized severely by various
penologists, as at one time there is the use of both reformative and retributive theories.

Punishment and crime are very strange phenomena to deal with. It is only if the acts done are
within the course of the provisions provided under the Code then any benefits take out of it is not
questioned. But any action through which maybe the same benefit is gained still the person may
be punished as because his action was not within the scope of the provisions. Also there are certain
elements in the society who though do many immoral acts but as because any provisions or
sanctions are not mentioned so that they can be punished they continue to do that act. One should
not earn any benefits or satisfaction out of such acts.

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The legitimacy of any form of has always been criticized. Though there are many legal coercive
measures but it is quite different from punishment. If the punishment were any retribution to an
evil done then regardless of any consequence it would try to end that evil in itself. But if the
objective of the punishment given is to prevent the crime from further occurrence then it would
rather than using coercive methods it would be using persuasive measures and discourage the
offender from committing that act in the future. Treating punishment as a conventional device for
the expression of resentment, indignation, disappointment felt either by the sufferer and his family
or the punishing authority as such J.Feinberg argues that certain kinds of severe treatment become
symbolic of the of the attitudes and judgement of the society or community in the face of the
wrongdoing, and constitute a stigma which castes shame and ignominy on the individual on whom
the punishment is applied. The distinctiveness of the unpleasant measure could consist of the way
of executing them. Thus, summarizing the concept of punishment one can suggest that punishment
includes the following areas:

 Punishment inflicted is a feeling of uncomfortable and unpleasant circumstances.

 It is a sequel of a wrongful act
 There must be some relationship between the punishment inflicted and the crime
committed.
 The punishment is a form by which a criminal is made answerable to the society.

Theories of Punishment

The object of punishment has been very well summarised by Manu, the great Hindu law giver, in following words:
punishment governs all mankind; punishment alone preserves them, punishment wakes while their guards are
asleep; the wise considers the punishment (danda) as perfection of justices.11 The general view that the
researcher finds is that the researcher gathers is that the theories of punishment being so vague are difficult to

1. 11
Institute of hindu law(translated by Haughton,G.C. 1835) ch.7, para 18 p.189 [

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discuss as such. In the words of Sir John Salmond, The ends of criminal justice are four in number, and in
respect to the purposes served by the punishment can be divided as12

1. Deterrent theory

2. Retributive theory

3. Preventive theory

4. Reformative theory

5. Expiation theory

Of these aspects the first is the essential and the all-important one, the others being merely accessory.
Punishment before all things is deterrent, and the chief end of the law of crime is to make the evil-doer an
example and a warning to all that are like-minded with him.

Deterrent Theory:

The object of punishment is not only to prevent the wrong-doer from doing a wrong 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 crimes13The chief aim of the law of crime is to make the
evil-doer an example and a warning to all that are like minded. One of the primitive methods of punishments
believes in the fact that if severe punishments were inflicted on the offender would deter him form repeating that
crime. Those who commit a crime, it is assumed, 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. The basic idea of deterrence is to deter both offenders and
others from committing a similar offence. But also in Bentham's theory was the idea that punishment would also
provide an opportunity for reform.14

12
PSA Pillai's criminal law, tenth edition, 2008
13
Salmond on jurisprudence 12th ed.,(1966) pp. 94-100
14
OP Srivastava's Principles of Criminal Law, EBC, fifth edition, 2010

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In earlier days a criminal act was considered to be due to the influence of some evil spirit on the offender for
which he was unwillingly was made to do that wrong. Thus to corred that offender the society retorted to severe
deterrent policies and forms of the government as this wrongful act was take as an challenge to the God and the
religion.

But in spite of all these efforts there are some lacunae in this theory. This theory is unable to deter the activity of
the hardcore criminals as the pain inflicted or even the penalties are ineffective. The most mockery of this theory
can be seen when the criminals return to the prisons soon after their release, that is precisely because as this
theory is based on certain restrictions, these criminals are not effected at all by these restrictions rather they tend to
enjoy these restrictions more than they enjoy their freedom.

Retributive Theory:

The person wrongdoer was allowed to have revenge against the wrong doer. The principle of an eye to eye, a
tooth to tooth, a nail to nail, limb for limb was basis of criminal administration.15

An eye for an eye would turn the whole world blind"— Mahatma Gandhi.

The most stringent and harsh of all theories retributive theory believes to end the crime in itself. This theory
underlines the idea of vengeance and revenge rather than that of social welfare and security. Punishment of the
offender provides some kind solace to the victim or to the family members of the victim of the crime, who has
suffered out of the action of the offender and prevents reprisals from them to the offender or his family. This theory
is based on the same principle as the deterrent theory, the Utilitarian theory. To look into more precisely both
these theories involve the exercise of control over the emotional instinctual forces that condition such actions.
This includes our sense of hatred towards the criminals and a reliance on him as a butt of aggressive outbursts.
Thus the researcher concludes that this theory closely related to that of expiation as the pain inflicted
compensates for the pleasure derived by the offender. Though not in anymore contention in the modem arena but
its significance cannot be totally ruled out as fear still plays an important role in the minds of various first time
offenders. But the researcher feels that the basis of this theory i.e. vengeance is not expected in a civilized society.
This theory has been severely criticized by modem day penologists and is redundant in the present
punishments.

15
Shiv ram v. state of U.P, AIR 1998 SC 49

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Preventive theory:

Object of punishment is prevention or disablement offenders are disabled from repeating the offences by
awarding punishment such as death, exile or forfeiture of an office. Unlike the former theories, this theory aims to
prevent the crime rather than avenging it Looking at punishments from a more humane perspective it rests
on the fadthat the need of a punishment for a crime arises out of mere social needs i.e. while sending the
criminals to the prisons the society is in turn trying to prevent the offender from doing any other crime and thus
protecting the society from any anti-social elements.16

Thus one an easily say that preventive theory though aiming at preventing the clime to happen in the future but it
still has some aspects which are questioned by the penologists as it contains in its techniques which are quite
harsh in nature. The major problem with these type of theories is that they make the criminal more violent rather
than changing him to a better individual. The last theory of punishment being the most humane of all looks into
this aspect.

Reformative Theory:
According to the reformative theory, the objective of punishment is the reformation of criminals. But that is the
beginning of a new story, the story of the gradual Renewal of a man, the story of his gradual regeneration, of his
Passing from one world into another, of his initiation into a new Unknown life. It emphasizes on the renewal of the
criminal and the beginning of a new life for him.

The most recent and the most humane of all theories is based on the principle of reforming the legal offenders
through individual treatment Not looking to criminals as inhuman this theory puts forward the changing nature of
the modern society where it presently looks into the fact that all other theories have failed to put forward any such
stable theory, which would prevent the occurrence of further crimes. Though it may be true that there has been a greater
onset of crimes today than it was earlier, but it may also be argued that many of the criminals are also getting
reformed and leading a law-abiding life all-together. Reformative techniques are much dose to the deterrent
techniques17.

This theory aims at rehabilitating the offender to the norms of the society i.e. into law-abiding member. This theory
condemns all kinds of corporal punishments. These aim at transforming the law-offenders in such a way that the
inmates of the peno-correctional institutions can lead a life like a normal citizen. These prisons or correctional
homes as they are termed humanly treat the inmates and release them as soon as they feel that they are fit to mix
up with the other members of the community

16
Ratan Lal Dhiraj Lal: Indian Penal Code Hindi (2 Vols): thirty first edition, 2008

17
PSA Pillai's criminal law, tenth edition, 2008

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Expiation Theory

Expiation Theory states that compensation is awarded to the victim from the wrong-doer, awarding compensation
from the accused, accused is not physically punished. He is economically punished, and such compensation is
awarded to the victim or victim's family members. This also becomes a lesson to the remaining public. Purpose
of this theory is generally, in other system of punishment, the victim is not taken into consideration. The present
criminal justice system concentrates only on punishing the criminal. The Courts are not in position to point out
the grievance of the victim or his family members.

In case of State vs. Sayyaduddin8, Justice Motilal Naik observed: 'By imposing imprisonment on the accused
could not be helpful to the family members of the victim. In my opinion, it is better to help the victim's family
members, as there is no one to look after them after the death of the bread-earner.

The victim or his family members satisfy with the money and can lead their remaining life safely. It also creates
repentance in the minds of the criminals. Modem criminologists, jurists penologists, jurisprudents, sociologists,
etc. support the idea of victimology and expiation theory.

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Conclusion

The philosophy of punishment was based on a religious or spiritual nature, but this basis had
changed by the classical school in the 18th century and the positivist school in the 19th century.
The classical school is founded by Cesare Beccaria who came, in his book Crimes and Punishment
with the idea says that laws should be designed to preserve public safety and order, not to avenge
crime. On the same context, Jeremy Bentham advocated the principle of utility and hedonism. The
Legacy of this school is that all global legal systems adopted the principles of classical school,
such as freedom from cruel and unusual punishment the right to a speedy trial, as freedom from
cruel and unusual punishment, the right to a speedy trial, the prohibition of ex post facto laws, the
right to confront one's accusers, and equality under law, contained in the Bill of Rights and other
documents at the heart of Western legal systems today. The Positive school of the 19th century
aimed to apply the scientific methods to social life. The philosophy of this school is based on an
assumption says that the biological, psychological, or social determinants are behind criminal
behavior. It is found that there are some strong points of relationship between the Classical and
Positivist School, especially in the thought of Bentham, who advocated the internal and external
constraints on free will, and rationality by which he appears as classical and positivist criminologist
The legacy of the positive school was the shift from the armchair philosophizing about human
behavior to utilizing the concepts and methods of science and from crime and penology to the
criminal.

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BIBLIOGRAPHY:-

1. Prof. N.V. PARANJAPE, Criminology and Penology with Victimology, Central Law
Publications, 1st Edn. 2014.

Website:-
1. http://lawnn.com/theories-punishment-kinds-punishment-criminal-law/
2. https://www.lawnotes.in/Theories_of_Punishments
3. http://www.legalserviceindia.com/articles/pun_theo.htm

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