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:
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.
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
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 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
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
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.
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
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.
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
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 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
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:
- Arbitrariness of sentencing punishment. An arbitrary depends on will or
discretion of the adjudicating officer. It is not governed by any fixed
- 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.
- 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.
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.
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 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
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 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.