Theories of Punishment
Introduction
One of the chief purposes of the law is to restrict the people to do wrong. This includes punishing the wrongdoer so as to create fear, however, creating to fear is not the only intention. Here we will look at the purpose of punishments.
Punishment in Ancient India
In the Ancient Indian period, the punishments were not so strict. The people were extricated from the country. At the zenith, they were made to be thrown in jail.
Punishment in Medieval India
At the time of medieval India, the people were given stricter punishments. Their arms were cut. They were given the transportation of life. They were put in jail. They were sent on an exile.
Punishment under British Empire
In the case of the British Empire, the people were given the punishment in a relatively formal manner. Each offence was equated to certain punishment. Various punishments were defined under Indian Penal Code, 1860. The procedure was explained in the Code of Criminal Procedure, 1973 etc.
Contemporary Theory
In the contemporary times, we see that there are three codes governing the criminal law. We see that these includes Indian Penal Code, Code of Criminal Law and Indian Evidence Law etc.
Theories of Punishment
Retributive Theory
According to this theory, it is right and proper to give an eye for an eye, a tooth for tooth, a limb for limb and a life for life.
In India, however, such a theory is not followed. Hindu jurists and philosophers believe that according to Hindu philosophy people are in'Karamvipaka' that is a man committing certain sins is born in the next life afflicted with certain diseases and bodily deficiencies or is born as a low or filthy beast or bird.
However, such a theory was criticised by various jurists.
In the case of Pani Ben vs State of Gujarat (1922) the Hon'ble was held that it would be a travesty if I sympathise with the offences such as bride burning etc. The court upheld that the conviction of the mother-in-law for the murder by bride burning of daughter-in-law.
In the case of Machhi vs State of Punjab it was held that the death punishment should be given in the rarest of the rare cases.
Such a theory is supported by Immanuel Kant, Plato, and Hegel.
However, such a theory was criticised by Salmond. It was argued that such a remedy would only aggravate the offence.
In the case of Jagmohan Singh vs State of UP the court observed that the death penalty serves two purposes. These are:
a) It satisfies the instinct of retribution,
b) It works as a deterrent to like-minded criminals at large.
However, since we work on the Gandhian philosophy the philosophy of an eye for an eye is criticised in our country.
Deterrent Theory
According to this theory, the purpose of the punishment is to stop or prevent the wrongdoers from doing the offence. During the Mughal period, this type of punishment was adopted.
The main supporters of this theory are Plato, the Sophists, Fichte, Locke etc. However, this theory of punishment was criticised by Kenny, Holmes etc. It was contended that even the equal rights to life, liberty and personal security are not given due care. The rights of the violaters are not respected.
We should find a method of punishment suiting the crime, not the criminal.
Preventive Theory
This kind of theory is for the prevent the crime from happening. In the times of Mughal India, this type of punishment was followed. It was very common. It was designed so as to prevent mischievous people from doing mischief.
However, the critics say that such an attempt is only to prevent the crime. It does not change the nature of the criminal in any way. It does not reform the crime doer.
Expiatory Theory
This theory is mainly supported by Hegel and Kohler. This theory assumes that the criminal is under the influence of some foreign ghost or demon, satan who has created the necessity for the criminal to commit the crime. In this case, the criminal was given some matras, ablution, fasting, penance or self-immolation techniques to relieve from the wrongdoing. This even extends to burning oneself.
However, such a theory is outdated in present times. Hence, Patton criticises it by stating that it is purely based on moral doctrines. These are beyond the limits of modern law and jurisprudence.
Reformative Theory
It tries to look into the core values such as a punishment for the correction of the behaviour. It looks at the previous history of the criminal. In case the criminal behaves in a good manner, he is even released earlier. We see the instances of furlough and parole in this case.
We see the juvenile justice Act in this context. We see the preventive or the probation of the offence in these cases. We see that there are rehabilitation centres in order to reform the people's values deep inside. This theory focuses on realignment of criminals into a good human by imbibing good values etc.
Conclusion
From the above discussion, we see that there are various types of punishments. However, which is the best is a subjective question to answer. According to the Gandhian philosophy, we see that the informative theory is the best as it tries to change the core values of the criminal. It opens door to new employment opportunities for the criminal.
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