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
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.¯
Types of Punishment:
- Deterrent theory of punishment:
It aims at stopping people from indulging in crimes ie. deterring
individuals from committing offences.
- 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
- Preventive theory of punishment:
This aims at preventing crimes by impairing criminals permanently or
- 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.
- 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.
From the view point of these Social Contract theorists, three major components
can be derived:
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.
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.
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:
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.
- 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. 
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
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
- 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
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.
Three ways of preventive punishment are as follows:
- Generation of fear of punishment
- Disabling the offender temporarily or even permanently from committing
- By reforming or making the citizens sober.
- 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
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. 
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.
- 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
In the Nirbhaya gang rape case 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.
- 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¯ 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.
- 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
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
- Views of the Indian Law Commission (Preventive Theory)
It said that if any victim gets compensated for his injuries, then he is
fortunate.  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
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 Supreme Court in
another case held that the accused rapist has to compensate the victim even if
he is not convicted. 
- 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
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.
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
- Hemant More, “What is Crime?¯ The Fact Factor, 21st March, 2020
- Diva Rai, “Theories of Punishment- a thorough study¯, iblog
pleaders, 19th November 2020
- State of Maharashtra v. Mansing ,8 (2005) 3 SCC 131.
- Triveniben v. State of Gujarat, AIR 1989 SC 142.
- Surjit Singh v. State of Punjab, (2011) 15 SCC 187.
- Phul Singh v. State of Haryana, (1979)4 SCC 413.
- 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/
- Dr. Jacob George v. State of Kerala, (1994) 3 SCC 430
- 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
- Mukesh & Anr. v. State for NCT of Delhi & Ors, (2017) 6 SCC 1.
- Bachan Singh v. State of Punjab, AIR 1980 SC 89.
- The UN General Assembly, A/RES/40/34, 1985.
- State of Gujarat & Anr v. Honble High Court of Gujarat, (1998) 7 SCC
- Vol II, Law Commission of India Report No. 42- Indian Penal Code, June
- Sarwan Singh v. State of Punjab, (1978) 3 SCC 799.
- Delhi Domestic Working Womens Forum v. Union of India and Ors, (1995)
1 SCC 15.