Theories of Punishment

Punishment is given to offenders with the aim to prevent them from committing crimes again. It deters not only the actual offenders but also others from doing the same kind of activity in the future. On the one hand, it is something that gives comfort or relief to the victim or his relative if the offender is punished on the other hand it serves a social purpose to prevent the people from indulging in criminal acts. Punishments have great social significance since the social Vedic period, as it was thought that punishment washed away the guilt of misdeed and the offender was freed from wrongdoing. All through the ages, society always reacted to crimes and the reactions have been different at different stages of human civilization and differences among various societies. All such reactions are in the form of punishment that was given to the wrongdoer. Thus punishment is a designated social reaction against crime.

According to Halsbury’s Laws of England, the object of punishment is the prevention of crime, and every punishment is intended to have a double effect, viz., to prevent the person who has committed a crime from repeating the act or omission and to prevent other members of the community from committing similar crimes. The object of punishment being preventive, the penal policy of a state should be to protect society. The protection of society is the object of law and that can be achieved by imposing appropriate punishment of such nature which may reflect the social conscience of the society.

The main aim of punishment is to form that everyone obeys the law. However, there are different theories concerning what’s the foremost type of punishment and what it ought to do. Thus it becomes very important on behalf of society to penalize the offenders. Each society has its own method of a group of action on which it frames laws and conjointly mentions the sanctions with them. To punish criminals is a recognized function of all civilized states. But with changing patterns of modern societies, the approach towards punishment has undergone a radical change. The penologists today are concerned with the crucial problems as to the ends of punishment and its penal policy.

The concept of punishment and its justification throughout the past century has shown its efforts from reform to rehabilitate offenders. But our practice of punishment seems to require justification. The three theories of punishment that are currently used in our society today are Retribution, Deterrence and Reformation.

Retribution Theory

The retributive theory provides that the penal laws should be designed to ensure that the offenders must suffer the same amount of pain as suffered by their victims. Retribution is basically the oldest theory of punishment. It is a very important feature of our criminal justice system. The basic principle of this theory is that the offender must receive as much pain and suffering as inflicted by him on his victim and thereby restore the social balance disturbed by the acts of the criminal.

According to retributivists, society has the right and the duty to vindicate the wrong done to it and it must impose a punishment that befits the crime. Herbert Hart defined retributivism as ‘the application of the pains of punishment to an offender who is morally guilty’. It has been commented that retributivism is seen as making some appeal to ‘moral desirability’[1]. If a thief intends to steal money from someone, he is morally responsible for the same. And because of this moral responsibility, the thief deserves punishment. The most classic form of retributivism is derived in the Code of Hammurabi’s lex talionis, which stands for ‘an eye for an eye and a tooth for a tooth’, it has been accepted by the general public that the criminal deserves to suffer. The suffering is imposed by the state in its corporate capacity.

The core principles of retributivism are desert and proportionality. The two principles are somewhat interlinked. As per this theory, the punishment has to be equal to the crime which was committed by the persons. Desert refers to some demerit that has caused the accused to commit a crime. The more the desert, the more the punishment should be. Retributivism is backward-looking. Retributivists do not punish a criminal for what he or she might do but only punish for the crimes one has committed and in the amount the person deserves. Retributivists do not concern themselves with the consequences of the acts but only with the desert which has occurred.

Immanuel Kant, an eighteen-century German philosopher, expressed in the following words “Judicial punishments can never be used merely as means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime”.[2]

It has been urged on behalf of the society that unless the criminal is punished, the victim will seek individual revenge, which would mean lynch law. It consists of avenging the wrong done by the criminal to society. The purpose is to gratify the desire for vengeance by making the criminal pay with his body. The retributive purpose of punishment is the elevation of the moral feeling of the community.

The utilitarians have criticized the retributive approach on the ground that it has no social utility. Any justification for punishment must state what effect such punishment is likely to have on criminals and on society in the future. This theory does not regard punishment as a measure of social security and welfare but considers punishment as an end in itself. It neglects the utilitarian aspect of punishment.

Judicial Perception

The judiciary in India has accepted retribution as one of the main objects of the death penalty. In regard to this purpose of the death penalty, Justice Sarkaria in Bachan Singh v. State Of Punjab [3]case observed “Even retribution in the sense of society’s reprobation for the worst of crimes, i.e. murder is not an altogether outmoded concept. This view is held by many distinguished sociologists jurist and judges”. He referred to a number of authorities for the view that retribution was still a socially acceptable function of punishment. For eg., Justice Stweartin Furman v. the State of Georgia [4]observed that retribution was a constitutionally permissible ingredient in the imposition of punishment. He said, “When people begin to believe that organized society is unwilling or unable to impose upon criminal offenders the punishment they ‘deserve’ then they have sown the seeds of anarchy of self-help vigilant justice and lynch law”.

Justice Sarkaria referred to the reports of the British royal commission and the Indian law commission on capital punishment where retribution had been upheld as one of the penal purposes of the death penalty. On the basis of the reports of these commission, he concluded that retribution and deterrence were two convergent goals that ultimately merged into one.

Further Justice Sarkaria added that it was a common phenomenon in all the civilized countries that when some shocking murders were committed, there was a general outcry from the public for the infliction of the ultimate penalty on the criminal. He illustrated this by citing a recent case where the refusal of the jury to impose the death sentence on a person (a policeman) convicted for heinous and cold-blooded assassinations of Mayer and Supervising Officer of San Francisco was reacted sharply by the public. In this connection, Justice Sarkaria observed:

Opposition to capital punishment has (to use the words of Raspberry)much more appeal when the discussion is merely academic than when community in confronted with a crime, or a series of crimes, so gross so heinous, so cold-blooded that anything short of death seems an inadequate response. Thus, Justice Sarkaria showed that retribution in the sense of reprobation for the most terrible crimes was not a totally outmoded concept. It was still acceptable to a large section of people throughout the world. Also while refusing to commit the death sentences in the popular Joshi Abhyankar Massacae case, the Court observed:

‘Having regard to the magnitude, the gruesome nature of the offence and the manner of perpetrating them, this case in all the facts and circumstances must be regarded as falling with the rare of the rarest category and the extreme penalty of death is clearly called for. Any leniency shown in the matter of sentence would not only be misplaced but will certainly give rise to foster, private revenge among the people leading to destabilization of the society’.

However, certain Judges have an extreme contrary views. Justice Bhagwati in his dissenting opinion in the Bachan Singh case stated that denunciatory or retributive theory of punishment which claimed to justify punishment, as the expression of the moral indignation of the society against the wrongdoer, was in truth an attempt to legitimize the feeling of revenge entertained by the society against him. He also said that in spite of the claim of the retributionists that retribution was now used as reprobation and not revenge, the feet remained that the death penalty was considered necessary not because the preservation of the society demanded it, but because the society wished to avenge itself for the wrong done to it. He was of the opinion that reprobation was merely a sophisticated phrase for revenge.

So, the punishment may be looked at from two different aspects. It can be regarded as a method of protecting society by reducing the occurrence of criminal behavior or it can be considered as an end in itself. In modem times it is the former aspect that is being emphasized because social welfare is considered to be of paramount importance. An ethical approach to crime which is the main basis of the retributive theory is gradually losing ground in modern times.

Deterrent Theory

The advocates of deterrent theory justify punishment as a deterrent to the offenders punished and also to others in the community. The punishment is imposed as a means for improving social behavior. It is designed to deter future crime; it frightens other citizens so much that they will not do what the offender did. The basic argument put forth for the deterrence principle is mechanistic; the varieties of crimes and varieties of punishments are so finely balanced that each punishment imposed on the offender will have a significant impact on others and they will realize that the costs of committing a crime outweigh the benefits.

The general deterrence principle in economic terms is “pay the price of a crime”. The hedonistic assumption is that people regulate their behaviour by calculation of pleasure and pain. When deterrence was regarded as the principal purpose of punishment, penalties were made as public and as brutal as possible so that it might remain as an example to the public as long as possible.  Whenever a community experience a significant increase in crime rate, there is a demand for an increase in certainty and severity of penalties based on the assumption that if more criminals are punished more severely other persons will be more effectively deterred from similar crimes.

The deterrent theory is known for the utilitarian explanation. It works on the premises where the criminal, like any other citizen, is a rational actor. It works by changing the costs and the benefits of the situation so that the criminal activity becomes an unattractive option. Bentham once stated that “If the apparent magnitude, or rather the value of [the] pain be greater than the apparent magnitude or value of the pleasure or good he expects to be the consequence of the act, he will be absolutely prevented from performing it.” [5]While a general deterrence is designed to avoid future crime. So, this is done by making an example of each defendant. Thus, it frightens the citizens to not do what the defendant did.

However, this theory has been criticized on the ground that this theory is forward-looking even in most cases the causation and effect are very different, due to which application of this theory would render the judicial system.

Judicial Perception

The Supreme Court has recognized, and accepted, the deterrent, value of death penalty. In cases where the murder has been committed in cold blood, and with utter disregard for human life, the Judges have clearly inflicted the extreme, penalty of death by way of deterrence. This trend has been followed consistently over the years.

Justice V. R. Krishna. Iyer in Ediga AnnamaM [6]expressed, the view that deterrence through the threat of death may still be a promising strategy in some, fruitful areas of murderous crime. Supreme Court observed that “The weapons and the manner of their use, the horrendous features of the crime helpless state of victim steel the heart of law for the sterner sentence.

Similarly, he refused the leave to appeal to the appellant in Paras Ram Vs, Slate of Punjab[7]. In this case, the appellant was a fanatic devotee of the Goddess and used to hold Satsang at which ‘Bhajans’ were sung in praise of the Goddess’. Appellant ceremonially beheaded his four-year-old son at the crescendo of the morning Bhajan one day. He was sentenced to death for this crime JusticeIyer, speaking for himself and Justice Sarkaria, refused to grant special leave and summarily dismissed the petition. Stressing the need for deterrent punishment, he observed that “Secular India, speaking through the court, must administer shock therapy to such anti-social “piety”, when the manifestation is in terms of inhuman and criminal violence.

Justice Sarkaria has also accepted the deterrent effect of the death penalty. In Bachan Singh asserted this by saying “In most of the countries in the world, including India, a very large segment of the population including notable penologists, judges, jurist’s legislators and other enlightened people still believe that death penalty for murder and certain other capital offences does serve as a deterrent, and a greater deterrent than life imprisonment.”

Reformative Theory

With the development of criminal science brought about a huge change in criminal concepts. There was a fresh approach to the problem of crime and criminals. Thus punishment is used as a measure to reclaim the offender and not to torture or harass him. Reformative theory condemns all these kinds of corporal punishments. The major emphasis of the reformist movement is the rehabilitation of inmates inside personal institutions. They also suggest that prisoners should be properly trained to adjust themselves to a free life in society after their release.

Agencies such as parole and probation are recommended as the best measures to reclaim offenders to society as reformed persons. The reformative view of penology suggests that punishment is only justiciable if it looks to the future and not to the past. “It should not be regarded as settling an old account, but to bring about a change in their mental outlook through effective measures of reformation “. Undoubtedly, modern penologists reaffirm their faith in reformative justice but they strongly feel that it should not be stretched too far. The reformative methods have proved useful in cases of juvenile delinquents and the first offenders. Hardened criminals, however, do not respond favourably to the reformist ideology.

It, therefore, follows that punishment should not be regarded as an end in itself but only as a means, the end being the social security and rehabilitation of the offender in society. This theory works well in the case of young offenders and some sexual offenders but has no appreciable effect upon the habitual, professional and hardened criminals.

As against reformative approach does not apply over habitual offender because for the crime is a habit and they are beyond the reach of any reformative program.

Secondly, if the offender is kept in prison very comfortably, the prison will turn into a rest house for all the offenders.  Critics of this theory also maintain that if punishment is to be a punishment, it must be unpleasant, while a course of reformatory education is only accidentally unpleasant.

The criminal is looked upon as an object of pity, but according to this theory, they must not be hatred because of which punishment becomes the work of the charity.


Criminology defines different theories of crime, from time to time these theories also developed and changed. These are important to understand so that the proper methods can be taken for amending our criminal laws. These theories clearly explain different laws of crime and how they all changed over time. Today we cannot say that only reformative theory is being followed and it is still in the developing phase due to some flaws in it. All theories are being followed at different intervals.



[1] R.A.Duff and Stuart P.Green, ‘Introduction: The Special Part and Its Problems’ in Defining Crimes: Essays on the Special Part of the Criminal Law (OxfordL Oxford University Press, 2005): 1-20

[2] Immanuel Kant, ‘The Retributive Theory of Punishment’ in (eds), The Philosophy of Law (1st, , 1887).

[3] AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145

[4] 408 U.S. 238 (1972),

[5] Jeremy Bentham British philosopher

[6] 1974 AIR 799, 1974 SCR (3) 329

[7] (1974) CRILJ 39

Leave a Reply

Your email address will not be published. Required fields are marked *