Punishment Under BNS- Meaning, Theories and Sentencing Policy

Punishment Definition

Punishment may be defined as the sanction imposed on an accused by a court of law for violation of the rules and regulations of society according to norms and established procedures of law. It may be imposed on a person or on the property of the accused, depending on the nature and extent of crime in a particular case.

Prof. Hart defines punishment in terms of the following five elements:

1. It must involve pain or other consequences normally considered unpleasant.
2. It must be for an offence against legal rules.
3. It must be for an actual or supposed offender for his offence.
4. It must be intentionally administered by human beings other than the offender.
5. It must be imposed and administered by an authority constituted by a legal system against which the offence is committed

Punishment aims to protect society from mischievous elements, by deterring potential offenders, and preventing actual offenders from committing further offences, to eradicate evils and to reform criminals and turn them into law-abiding citizens.

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Theories of Punishments

There are various theories of punishment which are followed worldwide under the respective penal law of any country. Those theories are discussed as below :

Deterrent Theory of Punishment

The main purpose of this theory is to deter (prevent) the criminals from doing the crime or repeating the same crime in future. Under this theory, severe punishments are inflicted upon the offender so that he abstains from committing a crime in future and it would also be a lesson to the other members of the society.

Criticism:

• It has been criticized on the grounds that it has proved ineffective in checking crimes and also that excessive harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public towards those who are given cruel and inhuman punishment.
• Secondly, when the offender is once punished, the punishment, to a certain extent, loses its rigour for him and once an offender undergoes imprisonment, he is no longer afraid of it to the same degree as he was before he served his first term. Thus the punishment has little deterrent effect upon the offender who has suffered the penalty.
• It fails to address social, economic, psychological, or emotional factors that lead to crime

Retributive Theory of Punishment

The origin of retributive theory lies in the primitive notion of vengeance against the wrong-doer. Kant says that justification of punishment lies in the fact that evil has been done by him who suffers it.

In modern times retribution is used in more than one sense. In the first sense the idea is that of satisfaction by the State of the wronged individual's desire to be avenged; in the second it is that of the States marking its disapproval of the breaking of its laws by a punishment proportionate to the gravity of the offence.

This theory of punishment is based on the principle - “an eye for an eye, a tooth for a tooth”. The object of this theory is to make the criminal realize the suffering of the pain by subjecting him to the same kind of pain as he had inflicted on the victim. This theory aims at taking revenge rather than social welfare and transformation.

Criticism:

• Promotes revenge and not justice

This theory has not been supported by the Criminologists, Penologists and Sociologists as they feel that this theory is brutal and barbaric. Revenge is wild justice. Justice systems are meant to be civilized and rational, not driven by emotions like anger or hatred.

• Ignores Reform and Rehabilitation

Retribution offers no scope for improving the offender or reintegrating them into society. Such punishment may harden the first-time offenders rather than reform.

• Fails to Consider Circumstances

Retribution ignores the background, intent, mental condition, or social circumstances of the offender. For example, a person who steals out of poverty is punished equally as someone who steals out of greed which can be morally unjust. In many cases a man happens to be a criminal due to circumstances, "chance and causes" and therefore "he needs to be disciplined". Once he suffers the penalty he is lost for ever and the State is deprived of a useful, perhaps a necessary member.

• Retributive theory considers punishment as an end in itself although the modern trend of penologists is to regard punishment as a means to an end and not an end in itself.

Preventive Theory of Punishment

The Preventive Theory (also called Incapacitation Theory) of punishment is based on the idea that punishment should prevent the offender from committing further crimes, either by disabling them or restricting their liberty (e.g., preventive detention, imprisonment, disqualified from holding office).

According to Paton “The Preventive theory concentrates on the prisoner and seeks to prevent him from offending again in the future”.

In ancient times the offender was prevented from crime again by disabling him permanently. For example, the punishment for theft was cutting of the hand of the offender or imposing death penalty on the offender.

In modern times some other measures of prevention are also applied, such as forfeiture of office, suspension and cancellation of licenses for dealing in goods or driving, preventive detention, security for keeping peace and security for keeping good behaviour.

Criticism:

It may violate Personal Liberty specially in cases of preventive detention without trial.

Reformative Theory of Punishment

This theory is also known as corrective or rehabilitative theory. Reformation means "the effort to restore a man to society as a better and wiser man and as a good citizen.”

This theory is the most humane of all the theories which aims to reform the legal offenders by individual treatment and based on the principle that “hate the sin not sinner”. The idea behind this theory is that no one is a born criminal and criminals are also humans. One commits a crime because he suffers from some disease. All sorts of criminal behaviour is because of some personality defect which they treat as a disease and like other diseases it also needs cure. Criminal is a patient and deserves treatment for crime is the result of some disease with which the offender was suffering. It treats punishment not an end in itself but as a means to an end. That end is the correction or rehabilitation of the offender.

In modem times reformative measures are adopted in cases of juvenile offenders. In prison they are given some education and are subjected to some such prison programmes so that they can learn some kind of work which may help them in earning their livelihood after coming out of the prison. The advocates of this theory emphasise that when the prisoner goes to jail he finds himself quite cut off from the rest of the world. The confinement, the deprivation of social intercourse and other ways of subjection to rigid discipline never allow him to develop his character. Therefore, what is important is the reformation of the offender by making him worthy of living in the society.

Criticism:

• Fails to deliver justice to victims

Reformative theory focuses more on the offender than the suffering of the victim. Victims and society may feel that justice is not served when serious criminals are given a chance at reformation.

• Not effective in cases of habitual or hardcore criminals

This theory has been proved to be successful in case of young offenders but ineffective in case of hardened criminals.

• May Encourage Crime

If offenders know that the system will try to reform them instead of punishing them, it may reduce the deterrent effect of criminal law.

• Takes a Long Time and Resources

Reformation requires education, counseling, training, psychological support, etc. This demands a lot of time, money, and skilled personnel, which many criminal justice systems lack, especially in developing countries like India.

• Not suitable for Heinous Crimes

Crimes like rape, murder, terrorism, etc., demand strong condemnation and punishment, not reformation. In such cases, reformative theory appears morally weak and socially unacceptable.

Compensatory Theory of Punishment

The Compensatory Theory (also known as Restitution Theory) of punishment focuses on compensating the victim of the crime. Its primary objective is to restore the loss or harm caused to the victim by the offender.

Sentencing Policy in India

Though all the above theories have some bearing on the kind of punishments inflicted in India, there is no uniform sentencing policy in the country and sentences reflect the individual philosophy of the judges.

In Rajendra Prasad v State of UP (1979), Krishna Iyer J has emphasized upon the importance of reformative theory which truly reflect the dictum that “every saint has a past and every sinner has a future”.

In State of Gujarat v Hon’ble High Court of Gujarat (1998), Thomas J, once again highlighted what ought to be the essential thrust of sentencing policy in India by stating – “Reformation should be the dominant objective of a punishment and during incarceration every effort should be made to recreate the good man out of convicted prisoners. Reformation and rehabilitation of a prisoner are of great public policy. Hence, they serve a public purpose.”

On the other hand, various judgment of Supreme Court has cautioned that too much stress should not be placed on reformative theory. Emphasis must also be given to the fact that the rights of victims of crime ought not to be forgotten. Just as the rights of prisoners and issue of prison reforms have to be given importance, the rights of the victim equally needed to be given primacy.

Many crimes of extreme brutality have been witnessed during the last few decades. It is when considering some of these, that courts have been forced to take a hard look at the nature of sentencing, whether the focus of sentencing is deterrent, retributive, rehabilitative, or reformative.

In Dhananjoy Chatterjee alias Dhana v State of West Bengal (1994), the Supreme Court stressed upon the retributive aspect of punishment. The court noted that there are admitted disparities in criminal sentencing by courts, especially in violent crimes against women. While some criminals receive harsh sentences, others get grossly different sentences for an essentially equivalent crime. This apart, shockingly, a large number even go unpunished, thereby encouraging the criminal and in the end making the judicial system suffer by weakening the system's credibility. The court finally said; 'Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.

In Ram Chandra v State of Rajasthan (1996), the Supreme Court stated - “it is the nature and gravity of the crime but not the criminal which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime, which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be relevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should respond to the society's cry for justice against the criminal.”

We can conclude that putting undue reliance upon a particular theory of punishment will not serve justice; rather the punishment should be awarded taking into the consideration nature and gravity of the crime as well as it should reflect the conscience of the society.

Watch More: Concept Of Crime

 

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