File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Administration of Justice: Theories of Punishment

The purpose of this article is to offer about justice, administration of justice, what are all the various theories of punishments paving way to attain justice and punishments which come under what theory of punishment. In the civilized societies, obedience to law becomes a matter of habit and in rare cases the force of state is used to secure it. At that rare case theories of punishment play a major role in administer justice.

There is no stringent rule to follow only one theory at a time and Humans are always complicated beings it is impossible to maintain justice in a society by using only one theory. We are open to form mixed theory of punishments by collaborating one or more theories with other theories for that result of mixed theory. Justice is to protect and add welfare to the state and society.

Administration of Justice

The main function of the state is to administrate the justice. Administrate means management and justice means the quality of being just, righteousness, equitableness, or moral rightness. Administration of justice means management of righteousness. According to Salmond, 'the administration of justice implies the maintenance of right within the political community by the means of the physical force of the state'.

Administration of justice developed hand in hand with the development of human being. Human beings are social beings that relies on cooperation to survive and thrive. Human being cannot and do not live-in isolation. While living as a society man must have experienced a conflict of interest and that created the necessity for providing for the administration of justice. At an early stage every individual had the right to punish the wrongdoer on their own this causes increase in personal vengeance; the crime was not certainly punished and man with overpower can attack anyone at any time.

Due to dynamic nature of our society administration of justice is also started evolving from personal vengeance and violent self-help method to state inflicting punishment on criminals method. At the time of state being a political state, it follows retributive theory of punishment 'a tooth for a tooth', 'an eye for eye', 'a life for a life' and deterrent theory. Slowly political state converted into welfare state now it is more focused on preventive and reformative theory of punishment for the betterment of society as a whole and citizen as an individual.

Theories of Punishment

Hindu law giver Manu summarised the object of punishment as:
Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are asleep; the wise considers the punishment (Danda) as the perfection of justice.

Deterrent theory
The word deterrence is derived from the Latin word deterrere which means to frighten from, to discourage from, to prevent from. Deterrent theory of punishment was given by classical philosophers such as Thomas Hobbes, Cesara Beccaria and Jeremy Bentham. The main purpose this theory is to prevent(deter) the crime with the help of terror of punishment.

Salmond quoted deterrent theory as 'Punishment is before all things deterrent and the chief end of the law of crime is to make the evildoer an example and a warning to all that are likeminded with him'.

Two types of deterrence are specific deterrence and general deterrence. Specific deterrence means an individual offender who is punished for his/her offence won't commit that offence again in the fear of punishment he/she already gone through. General deterrence means is a fear of public at large, they don't have an personal experience of punishment but they have a knowledge of punishment experienced by a defendant.

The idea that individuals will always make rational, cautious and logical decisions is known as the rational choice theory. Deterrence theory is based on rational choice theory that states people commit crimes when the expected benefits of committing a crime outweigh the likely costs of crime. In deterrence theory the punishments are always having more weightage than the gain from that crime so the person with rational thinking will never do that crime.

Criticism of deterrence theory are it assumes that human beings are rational actors who consider the consequences of their behaviour before deciding to commit a crime; however, this is often not the case, high rate of recidivism and because of severity of punishment society started treating a criminal as a victim.

Preventive theory

The main object of preventive theory is to prevent and disable the offender from committing and repeating crime. Justice Holmes is known as the profounder of preventive theory.

Utilitarian philosopher's such as Bentham, Mill and Austin of England supported the preventive theory of punishment due to its humanizing nature. This theory does not act so much on the motive of the wrongdoer but disables his physical power to commit the offence.

Preventive theory and deterrent theory are similar in most of the aspects but there is a slight difference between them. Both the theories are preventing crime by using different methods. Preventive theory prevents crime by disabling defender from doing crime. The deterrent theory prevents crime by warning the society at large with the help of severe punishments.

Reformative theory

Reformative theory is also known as rehabilitative theory. The object of the theory is to reform the criminal other than punishing him/her. The principle of this theory is no one is a born criminal in our society. According to this theory we have to separate crime from the criminal there are various reasons like environment, circumstance, personal issues etc. abet someone to commit crime. Reformative theory is accepted in most of the countries around the world on its humanitarian ground of rehabilitating a criminal into a good human.

The offender should be punished only after considering his/her age, education, character, offences already done by him/her and mindset. Most of the crimes are done on a rare circumstance, sudden provocation and not having time for rational thinking this situation may not going to happen again in their life so stamping and treating someone as a criminal for his/her single act is not healthy to our society. Reforming the morals of the offender by educating and teaching some art or industrial work during the period of his imprisonment so he/she may be starting his/her life again after release from jail.

In various acts and sections this theory is already implemented are the children act 1960, The Probation of Offenders act 1958 and section 27 & 360 of Criminal Procedure Code.
Criticisms of reformative theory are according to Salmond, the reformative theory is that if criminals are to be sent to be transformed into good citizens by physical, intellectual and moral training, prisons must be turned int comfortable dwelling places, the cost of rehabilitation is burden to the government, the victims won't get any justice, victims family will have the vengeance it may lead to another crime and criminal don't have any fear of punishment.

Retributive theory

Retributive theory is based on famous principle 'an eye for an eye', 'a tooth for a tooth'. It is also known as theory of vengeance. Plato was a supporter of retributive theory. He wrote 'if justice is the good and the health of the soul as injustice is its disease and shame, chastisement their remedy'. In Latin term lex talionis, principle developed in early Babylonian law and present in both biblical and early Roman law that criminals should receive as punishment precisely those injuries and damages they had inflicted upon their victims.

Retributive theory satisfies the desire of victim's family by inflicting punishment to the offender in order to avoid the danger of private vengeances. The punishment is proportional to the crime committed by criminal. The main purpose of this payback punishment is to make the criminal suffer to the extent he made the victim suffer.

Criticism of retributive theory are to punish crimes itself has some difficulties. In retributive theory they don't have any particular standards to punish crimes they punish crimes on subjective basis. Punishment in itself is an evil, new evil is not a remedy for an old evil. Pardon and mercy have no places under retributive theory.

Compensatory theory

According to compensatory theory, object is to compensate the victim suffered by crime done by offender. This theory mostly applicable to civil justice than the criminal justice. The purpose of compensatory theory is to get back the ill-gotten benefits of the crime from the offender. Compensation helps the victim to rehabilitate and reform him/herself from the loss caused by offense.

In the Criminal Procedure Code, 1973 this theory is already being implemented. This Code classifies the offences in two categories � one serious natured crimes and another simple crime. Section 320 of Cr.P.C. describes certain crimes, which can be compoundable. The accused can compromise with the victim by paying compensation. Assault, defamation, etc: are classified as 'compoundable offences' under Section 320 CrPC.

The framers of the Code intentionally excluded the offences of murder, kidnapping, rape, theft, etc., from compoundable offences. These cases are not compromisable and compoundable. The State shall inquire, investigate and punish the culprit to protect the society from such culprits.

Criticism of compensatory theory are not effective like other theories of punishment the economic position of the offender plays a major role in this theory if the offender is poor, he/she have no source to pay compensation, if the offender is rich the payment of compensation has no impact on him, it oversimplifies the motive of the crime and it increase recidivism.

Expiatory theory

According to this theory, repentance and expiration by the offender itself is a punishment. The prisoner or an offender were kept in an isolated cell to repent and expiate or his crime. This theory believes that every person deserves to be forgiven when he realized his/her mistake. It is a matter of morality if an offender didn't realize his offense even after getting sever punishment soon, he will do another crime but in expiatory theory will make the offender realize about his/her crime that realization will stop the further offence in the society.

Criticism of expiatory theory are they are not practical in this modern and materialistic society and it is impossible get inside someone mind to know whether they realized their crime or not.

Kinds of Punishment

Capital Punishment

Capital punishment is also known as death penalty, execution of offender sentenced to death after conviction by the court of law for a criminal offence. Various method of executions is used in different counties like hanging in India, Singapore, Malaysia and Japan. Shooting in China, Russia and Thailand, lethal injection in United States, electrocution in Philippines, gas inhalation in Lithuania and beheading Saudi Arabia. Capital punishment follows deterrent theory, each execution has a strong effect on others from preventing them from committing crime.

There are two main purpose of capital punishment they are deter others from committing crime and to eradicate the criminal from the society. Capital punishment is not violating the right to live of offender, as the offender has forfeited that right and the death penalty is then justifiable as a morally permissible way to treat murderers in order to affect some good for society. J.J. Maclean of Canada defends the right of the state to award capital punishment for murder. According to him, 'if the citizen wants to protect his own life by killing whoever attacks without any reason, the state can do the same when a criminal attacks and endangers the life of the community by deciding to eliminate summarily another human being'.

Death penalty is mainly criticized under three grounds:

  1. Arbitrariness of sentencing punishment. An arbitrary depends on will or discretion of the adjudicating officer. It is not governed by any fixed rules.
  2. Irreversibility of death punishment. Once the punishment was executed it's impossible to recover the person who is punished in a later stage of knowing he/she is an innocent.
  3. Human rights oppose the death penalty in all circumstance because it is inherently cruel and cause psychological trauma to the convicts and their family until execution.

Death punishment has declined dramatically around in world in recent years. Since 1975, more than 75 nations abolished death penalty for all crimes, while other have abolished it for ordinary crimes. The countries abolished death punishments are Philippines, Italy, France, Australia, Bhutan, Belgium etc. According to Amnesty International China is the world's most active death penalty country. Following Iran, Saudi Arabia, Vietnam, Iraq and Egypt gave a major contribution to the death penalty.

As per section 54 of the Indian Penal Code, capital punishment is one of the punishments that the court may provide to the person convicted for an offence. In India death penalty imposed only in the rarest of the rare case like brutal rape and murder, offence against state etc. India there is a practice of breaking pen nib after awarding death sentence because once the sentence written or signed, the judges have no power to review or revoke the judgment.

So, the nib is broken so that the judge may not think of reviewing his own judgment. The practice is symbolic of a belief that a pen that is used to take away a person's life should not be used ever again for other purposes.

Imprisonment
The state of being imprisoned is known as imprisonment. To imprison is to hold someone in a prison or jail for a sentenced period. Imprisonment is based on three theories includes deterrent theory because it makes an example of the offenders to other, preventive theory because its prevent the criminal from committing crime till he/she is imprisoned and reformative theory because it rehabilitate the criminal by educating new skills and arts.

Three types of imprisonments are imprisonment for life, rigorous imprisonment and simple imprisonment. Every type of imprisonment has its own advantages and disadvantages. Short term imprisonment is dangerous and long-term imprisonment is useless. Terms of imprisonment is fixed by the court after considering the nature of the offence, circumstance of its commission, the age and characteristics of the offender, injury to the individual or to society and reformation of the offender.

Solitary confinement

Solitary confinement is the physical isolation of individuals who are confined to their cells. Solitary confinement causes psychological problems like anxiety, depression, stress, suicidal thoughts etc. human beings are social animals when isolating him from the society cause him more pain than physical pains. Solitary confinement varies from country to country based on their correctional systems which is famous in countries like United States, United Kingdom, Myanmar and South Africa but in India it practiced only in the rarest case.

Corporal punishment

Corporal punishment is also known as physical punishment. The infliction of physical pain upon a person's body as punishment for a crime. This punishment includes modulation, flogging, amputation, whipping and torture. This punishment is based on deterrent theory by using a physical pain to prevent crime. Corporal punishment is explicitly prohibited by several international conventions on human rights, including the European Convention on Human Rights and the United Nations. Most of the developed countries are not following corporal punishment method but still some countries like United Arab Emirates, Iran, Afghanistan, Singapore etc. practicing.

Deportation

Deportation is a process of expulsing a dangerous offender from a place or from a country. Deportation is based on preventive theory. It prevents the offender from committing further crime by deporting him/her to another place. There are two kinds of deportation they are the act of expelling an alien from a country (expulsion) and the act of transporting someone from his/her country (banishment). deportation having criticisms like if the person is dangerous to one society and if he transferred to another society, he is likely to be equally dangerous there also.

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers



Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


LawArticles

Section 482 CrPc - Quashing Of FIR: Guid...

Titile

The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of th...

Whether Caveat Application is legally pe...

Titile

Whether in a criminal proceeding a Caveat Application is legally permissible to be filed as pro...

How To File For Mutual Divorce In Delhi

Titile

How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

The Factories Act,1948

Titile

There has been rise of large scale factory/ industry in India in the later half of nineteenth ce...

Copyright: An important element of Intel...

Titile

The Intellectual Property Rights (IPR) has its own economic value when it puts into any market ...

Law of Writs In Indian Constitution

Titile

Origin of Writ In common law, Writ is a formal written order issued by a body with administrati...

Lawyers Registration
Lawyers Membership - Get Clients Online


File caveat In Supreme Court Instantly