Punishment in Jurisprudence

The Concept of Punishment in Jurisprudence

What is Punishment?

The word punishment is derived from Latin term “punire” which means punish, correct, take vengeance for etc. It means punishment is the way of punishing someone for the wrongful acts done by him. Basically, punishment is the sanction imposed on a person for the infringement of the rules of society. It is generally inflicted on a person or on property of an accused according to law.

This unpleasant infliction may include a fine, penalty, or confinement, or be the removal or denial of something pleasant or desirable. The study and practice of the punishment of crimes is called penology, or, often in modern texts, corrections; in this process the punishment process is euphemistically called “correctional process”.

Why Punishment?

The objectives of punishment serves the answer to the question of why punishment.
The objective of punishment is to prevent the society from mischievous activities and unwanted elements by deterring the offenders, by preventing actual offenders from doing further offences and by reforming them. The public dislike the criminals and this dislike is expressed in the form of punishment.

Theories of Punishment

To get more deep knowledge of the concept of punishments we have to study the theories of punishment. Basically there are four main theories given by the philosophers that broaden the view point of looking at punishments.

These are as follows:-

Preventive Theory- The main object of this theory is to prevent crime not revenge. Criminals create terror, insecurity, and disorder in society. So it is necessary to keep the criminals away from the society. Offenders are prevented from doing the offence by awarding them the punishments such as life imprisonment, exile, forfeiture of an office and sometimes death. According to Paton, “the preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future”.

Criticism: It has undesirable effect of hardening the first offenders and juvenile offenders, when imprisonment is punishment by putting them in association of hardcore criminals. 

Deterrent Theory- The literal meaning of deter is to abstain. The object of punishment is not only to prevent the offender from offending again, but also to make him an example to other persons who have criminal tendencies. Salmond considers deterrent aspects if criminal justice to be the most important for control of crime. It was prevalent in Europe in Medieval period where the punishment for small offences like stealing is punishment of death by stoning or whipping publically.

Criticism: Ineffective in checking crimes. Excessive harshness of punishment tends to defeat its own purpose by arousing sympathy of the public towards those who are given cruel and inhumane punishments. It is likely to harden the criminals and hardened criminals do not fear the death or imprisonment. 

Retributive Theory- Retributive means to take revenge. According to P.K. Sen, “take revenge of evil by evil is the main objective this. The motto of it is, Life shall go for life, hand for hand, eye for eye and tooth for tooth.” Thus in this theory, the criminal is punished the same as he have committed crime.

Criticism: According to Salmond, “Revenge is not remedy or cure fir crime, but it is reason if rise in crimes.”

Reformative Theory- It is the modern theory of punishment. Its main object is to reform criminals. It is of the support of this principle that the criminals can be prevented from crime by changing their heart. They say that many times people commit offence due to compulsion, poverty emotions, and family conditions. These persons have feeling of guilt and these persons should be provided opportunity to reform themselves.

Criticism: If criminals are sent to prison to be transformed into good citizens, a prison will no longer be a prison rather a dwelling house. Deterrent motive should not be removed totally from administration of criminal justice.

Types of Punishment

The criminal administration is very ancient. In old times the forms of punishment were other but now they are more just and fit to the needs of society. The Indian Penal Code, 1860 have given five main ways of punishing the offenders in Chapter-III Section-53.

The five main ways of punishment are as follows:-

Death Penalty: It is the loss of life by way of hanging the offender. It is the most extreme way of punishment and is restricted to certain shocking heinous crimes. This is the last way of punishment. However, the Pardons by the Governor and the President save the criminal sometimes.

Imprisonment for Life: The sentence of imprisonment for life is second extreme way of punishing the offenders. It is also awarded for crimes of high nature. Sometimes the punishment is remitted by the appropriate Government up to 20 years or sometimes 14 years. This is not simple imprisonment this is the hardcore rigorous imprisonment up to the last breath of the criminal.

Imprisonment: This category is further divided into two sub categories viz; simple and rigorous imprisonment. The difference is of the severity of treatment during the punishment. Rigorous imprisonment is the imprisonment in which offender has to do hard labour.

Forfeiture of Property: Forfeiture refers to loss of any property, money, or assets without consideration or compensation in return. Forfeiture is generally a criminal process involving judicial proceedings.

Fine: It is the lowest nature of penalty. When an offender has committed any crime which involves a punishment of fine up to any amount it is levied on him by the Court. Sometimes as the provision may be the fine is also applied with imprisonment. There is also the provision of punishment for default in payment of fine.

New forms of Punishment

It is suggested to add five new forms of punishments to the existing ones in Section-53 of IPC. These punishments will have a more psychological, social and moral impact on criminals.

These are:-

Externment: Externment or banishment is a form of punishment in which the accused is sent out of the place of his abode for a specific period of time as mentioned by the Court. Do not confuse it with exile.

Compensation to Victims of Crimes: In Criminal Procedure Code, 1973 Section-357 has empowered the Court to award compensation to the victims of crimes while passing judgments. 

Public Censure: Public censure or social censure is one of the methods of punishment prescribed in some of the countries, such as former USSSR in respect of certain offences of anti-social nature, such as white collar crimes, tax crimes, food adulteration etc. It is believed that such a punishment will have more deterrent effect on individuals in view of social stigma attached due to publication of names of persons involved in such crimes.

Community Service: Community service or corrective labour is a form of punishment in which the convicts not deprived of his liberty. It is the standard penalty given in those cases where it is considered that the accused need not be isolated from society. The accused is paid emoluments for the work. The period ranges from one month to one year in such cases.

Conclusion

When we hear about crime the next thing that struck in our mind is punishment. It is the basis of criminal administration of justice and to reform our society. There are many theories of punishments in this modern world and all these are to be used unanimously. The modes of punishments are however a bit older but new and innovative forms are coming soon. There are many authorities working in making the smooth functioning of administration of criminal justice.

Article by Keshav Gehlawat

(BA LL.B HONS. MDU ROHTAK)