Monday, 24 January 2022

Theories of Punishment

 Theories of Punishment

What is Punishment- 

Punishment can be defined as the pain inflicted on a person or seizure of his property who is found guilty of a crime under any established law.  According to Professor H.L.A Hart, the punishment must have the below elements-

  1. Punishment must involve some kind of pain or any other unpleasant consequences.

  2. Punishment must be inflicted on an actual offender found guilty for his offense.

  3. Punishment must be administered by any other person and not by the offender.

  4. Punishment must be given for an offense that goes against legal rules.

  5. Only an authority established or constituted by a legal system can impose and administer punishment. 

Various Theories of Punishment are-

1)  Retributive theory- This theory of punishment is influenced from olden times, where the injured person used to take revenge for the wrong deeds done to him by the offender. Retributive theory is based on the concept of revenge and the best way to explain it is “An eye for an eye and a tooth for a tooth”. The retributive theory is an end in itself as the evil should be treated as evil and should be returned evil. But this theory is heavily criticized and is losing its significance in the modern world.

2) Preventive theory- As the name suggests preventive punishment is based on the concept of “not to avenge crime but to prevent it”. This theory aims to prevent the crime by anticipating the crime in advance and incapacitating the offenders. Some measures like preventive detention, security for keeping good behaviour, seizure of license, etc are the most popular practice preventing crime. This theory is also full of criticism as it does not work successfully every time in checking crime.

3) Deterrent theory- Deterrent theory aims to create deterrence in society or to deter the criminal from committing a crime in the future and to set an example for others that they will also be punished similarly for committing a crime. When the criminal is punished it creates an impression in the society that crimes are not going unnoticed and no wrong can be excused. This theory has been criticized for not setting up enough deterrence for a habitual offender.

4) Expiatory theory- This theory is popularly known as penance theory. This theory is influenced by Hindu Jurisprudence. According to this theory for purification of the offender punishment is necessary. Here the offender gives punishment to himself so that he can purify himself. This theory has been criticized because there cannot be any standardized punishment and the offender cannot himself decide the amount and type of punishment he wants to undergo.

5) Reformative theory- The reformative theory of punishment seeks to reform the offender by changing his attitude and restoring him back to society. Many countries have developed this theory and adopted this theory as a method of punishment in their country. This theory critically analyses the reason behind the commission of the crime and after analysing the reason, it suggests reformative measures by which the offender can reform himself.

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