PURPOSE OF CRIMINAL JUSTICE: THEORIES OF

PUNISHMENT
Punishment is suffering in person or property inflicted by the society on the offender who
has been adjudged guilty under the law.

Purpose:
Some thinkers maintain that punishment is an end in itself. Confucius maintains that
punishment is inflicted for its own sake. On the other hand, there are others who feel
that punishment is not an end in itself that it is a means to some other end.
 OBJECT OF PUNISHMENT
1. Deterrent
2. Preventive
3. Reformative
4. Retributive
5. Compensatory
 1) DETERRENT THEORY
Offences are result of a conflict of interest real or
assumed between the individual & the
society. The purpose of punishment
according to this theory is to deter the
prospective criminals from committing
crimes by terrorising them. An offender is
punished to set an example unto others.
Presumption:
1. Fear plays an important part in human life.
2. That a criminal knows that what he is doing
is wrong
3. That there may be a conflict between the
individual & social interests.
 MERITS
Deterrence acts on the motive of the offender. Such punishments would
make commission of an offence an ill bargain for the offender.

By setting an example , it prevents commission of a crime & prevention

is better than cure.

It can successfully deal with the incorrigible offenders.

It is universally accepted as purpose of punishment in actual penal

schemes throughout the world.
 OBJECTIONS

It completely subordinates the interests of the individual to those of the

society.

Its assumptions are not always correct. Fear does not always work in the
same way on the minds of person as it assures.

Inhuman & barbaric penalties have been justified by deterrent [Link] is

inconsistent with idea of reformation & rehabilitation of offenders.
 CONCLUSION
Salmond,

‘We hang murderers not merely that it may put into the heart of others
like them the fear of alike fate, but for the same reason for which we
kill snakes namely because it is better for us that they should be out
of the world than in it.’
 2) PREVENTIVE THEORY
The object is to prevent a criminal from committing crimes in future by
rendering the offender incapable of the offence either permanently or
temporarily.
Preventive mode of punishment works in three ways, viz.
a) By inspiring all prospective wrong doers with fear of punishment
b) By disabling the wrong doer from immediately committing any crime; &
c) By transforming the offender, by a process of reformation
Relations between Deterrent & Preventive Theories
Deterrent theory aims at giving a warning to society at large that crime does
not pay.
Preventive theory aims at disabling the criminal from doing further harm.
 3) REFORMATIVE
Most widely accepted of all theories of punishment in modern times is
reformative theory of punishment. According to this theory, the
punishment to reform the offender. According to this theory crime is like
a disease. This theory maintains that ‘you cant cure by killing.’Focuses
on rehabilitating criminals,turning them into law-abiding citizens .
Presumption:
1. Criminals are abnormal persons
2. That they can be turned into normal person after corrective treatment
3. That interests of society are best served by rehabilitation of offenders
 MERITS

1. It takes into account the individual criminal

2. It has supplied a humanitarian & civilsed touch to the penal
scheme
3. Suitable for a) insane, b) young, c) first casual offenders
4. It supplies best justification for punishment to reform &
rehabilitate the criminal
5. It insisted on omission of inhuman & barbaric punishment
from various penal system
OBJECTION
1. Assumption that crimes are committed by abnormal or insane
persons. This is not always so
2. In zeal to reform, not only removed punishments which were
barbarous, but seriously limited rigour of even reasonable
punishment
3. Concentration on reformation may lead to ignoring other objects
of punishment like deterrence pr prevention
4. If punishment loses its sting, people may be encouraged to
commit crimes
5. It breaks down with incorrigible offender.
 It is simply the primitive theory of 4)
private vengeance of an eye for an eye
or a tooth for a tooth with the
RETRIBUTIVE
difference that the retribution is meted
out by the society instead of the
aggrieved party.
Presumptions:
The feelings of revenge is a hard reality of
human nature
Punishment should satisfy this feeling of
revenge
 MERITS
1. It is very simple, honest & based on realities of human nature
‘Revenge is sweet.’
2. It insists on striking a just balance
3. Once the wrong doer undergoes the punishment for the wrong his sin
is blotted out .
4. Punishment should never be in excess of the gravity of crime. ‘tooth
for a tooth’, eye for an eye & life for a life.
 OBJECTIONS
1. It is wrong to consider punishment as an end in itself
2. It is barbarous, brutal & primitive
3. Taken to its ultimate conclusion, the idea of retribution would result
in absurdity .
4. In practice, it is difficult to impose punishment exactly in proportion
to the crime.
5. It is inconsistent with purpose of reformation & rehabilitation of
offender.
 5) COMPENSATORY
The purpose of punishment is to compensate the victim of the crime.
[Link] “The main spring of criminality is greed & if the offender is
made to return the ill gotten benefits of the crime, the spring of
criminality would be dried up.’
Merits:
 It attacks the motive of greed of the criminal
 It is consistent with purpose of deterrence, makes crime an ill bargain
for the offender
 Consistent with purpose of reformation
 Consistent with purpose of retribution
 More civilsed & rational method of penalizing offenders
 CRITICISM
Motive of an offence may not always be monetary gain. In
that case compensation would neither be adequate nor
workable as a form of punishment.

Conclusion:
No theory of punishment can achieve the real purpose of
punishment singly. Calwell, an American Criminologist
observes, ‘Punishment is an act which involves the
balancing of retribution, deterrence & reformation.’
 INDIAN OVERVIEW
Daulatram v state of UP (AIR Online 2021ALL 3097)-The Apex Court considers that no
accused person is incapable of being reformed and therefore all measures should be
applied to allow them of reformation to bring them in the social stream.
One of the basic principles of restorative justice as developed by Indian courts over the
years,is to also give an opportunity to the offender to repair the damage caused and
to become a socially useful individual upon his release from jail.
The most important factor is a just punishment ,not adherence to a particular [Link]
example in the case of Jacob George v State of Kerala (1994) 3 SCC 430 the
sentence awarded was noted to be retributive,preventive,deterrent as well as
compensatory in nature.
Shyam Narain v State of NCT 2013 Cri LJ 3009 The Apex court noted that the imposition
of sentence is meant to make the accused realise that his acts and omissions have
harmed him and social fabric of [Link] punishment is meant to ensure that
crimes are not repeated,there is a deterrent quality with sufficient opportunities for
reformation
 S. 4. PUNISHMENTS

The punishments to which offenders are liable under the provisions of this Sanhita are-

(a) Death;
(b) Imprisonment for life;
(c) Imprisonment, which is of two descriptions, namely:-
(1) Rigorous, that is, with hard labour;
(2) Simple;
(d) Forfeiture of property;
(e) Fine;
(f) Community Service.
INCLUSION OF COMMUNITY SERVICE

S. 4 deals with different kinds of punishments under the BNS. The section is wider
than the provisions under the now-repealed IPC, 1860 as it includes 'community
service' within its purview unlike the IPC, 1860.
the objects of punishment under criminal law include:
To protect society from mischievous elements by deterring potential offenders;
To prevent actual offenders from committing further offences;
To eradicate evils, and reform criminals and turn them into law-abiding citizens;
To administer justice with a dual pronged approach i.e. inflicting pain to deter
criminals and others from indulging in crime as well as by reforming criminals.
V) To maintain rules and regulations for a crime-free country.
The most important factor is a just punishment, not adherence to a particular theory.
For example, in the case of Jacob George v. State of Kerala, the sentence
awarded was noted to be retrebutive, preventive, deterrent as well as
compensatory in nature.

The Apex Court has noted that imposition of sentence is meant to make the accused
realise that his acts and omissions have harmed him and the social fabric of the
society. Just punishment is meant to ensure that crimes are not repeated; there is
a deterrent quality therein with sufficient opportunities for reformation. Courts
have to be mindful of gravity of the offence. The principle of proportionality
between an offence committed and the penalty imposed is key here.
 Capital Punishment

In the landmark case of Bachan Singh us. State of Punjab,(1980) 2 SCC 684 the
Supreme Court upheld the validity of ‘death sentence’ in the country, but held that
life imprisonment was the rule and ‘death sentence’ was an exception which was to
be imposed in the ‘rarest of rare’ cases, and with due recording of the special
reasons. Effectively, it meant that aggravating and mitigating circumstances are
required to be considered before exercising discretion to impose the extreme
penalty of ‘death sentence’
Certain principles emerge from the Bachan Singh case and others which reiterated or
elaborated upon the same, which can be summed up as follows:
The extreme penalty alty of death need not be inflicted except in the gravest cases of
extreme culpability i.e. the Court has to apply the test to determine, if it was the
‘rarest of rare’ case for imposition of a death sentence.
In the opinion of the Court, imposition of any other punishment like life imprisonment
would be completely inadequate, and would not meet the ends of justice.
.
Before opting for the death penalty, the circumstances of the ‘offender’ also require
to be taken into consideration along with the circumstances of the ‘crime’.
Life imprisonment is the rule and death sentence is an exception. In other words,
death sentence must be imposed only when life imprisonment appears to be an
altogether inadequate punishment having regard to the relevant circumstances of
the crime, and only provided, the option to impose a sentence of life
imprisonment cannot be conscientiously exercised having regard to the nature
and circumstances of the crime and all the relevant circumstances.
The method (planned or otherwise) and the manner (extent of brutality and
inhumanity, etc.) in which the crime was committed and the circumstances
leading to commission of such heinous crime have to be taken into consideration.
A balance sheet of aggravating and mitigating circumstances must be drawn up. In
doing so, the mitigating circumstances have to be accorded full weightage, and a
just balance must be struck between the aggravating and the mitigating
circumstances before the option is exercised. Mitigating factors include extreme
mental or emotional disturbance in which the offence might have been
committed, the possibility that the accused would not be a continuing threat to
society, the possibility of reformation and rehabilitation of the accused, mental
defect, or disorder of the accused, etc.
‘RAREST OF RARE’ FORMULA-EXPANSION VIA
MACCHI SINGH CASE
In the case of Macchi Singh & Ors. V. State of Punjab AIR 1983 SC 957 there was an
expansion in the ‘rarest of rare’ formula i.e. imposition of death penalty in cases
where the “collective conscience” of a community is so shocked that it will expect
the holders of the judicial powers centre to inflict death penalty, irrespective of
their personal opinion as regards desirability or otherwise of retaining death
penalty. This expansion was not intended to and does not detract from due
weightage being given to the mitigating circumstances. It is also essential to strike
a just balance between aggravating and mitigating circumstances in the case at
hand.
Thus, before imposing death penalty, the Courts are required to enquire whether:

There is something uncommon about crimes which renders a lite sentence of life
imprisonment inadequate, and
There is no alternative punishment suitable except the death sentence.
Imprisonment of Life

The definition of life’ as contained in S. 2(17) of Sanhita makes it clear that life
means the life of a human being i.e. till he breaths his last. In Gopal Vinayak
Godse v. State of Maharashtra & Ors AIR 1961 SC 600 it was held that a
sentence for transportation for life or imprisonment for life must prima facie be
treated as transportation or imprisonment for the whole or remaining period of a
convicted person’s natural life.
This decision was reieterated by a Constitution Bench in the matter of Maru Ram v.
Union of India & Ors., .,(1981) 1 SCC 107 that the imprisonment for life lasts until
the last breath of the convict, and the prisoner can claim release only if the
remaining sentence is remitted by the Government
The Apex Court has clarified the legal position what constitutes life imprisonment in
more recent matters too including Life Convict Laxman Naskar v. State of W.B.,
AIR 2000 SC 2762where it was observed as follows:

“Sentence for ‘imprisonment for life’ ordinarily means imprisonment for the whole of
the remaining period of the convicted person’s natural life. A convict undergoing
such sentence may earn remissions of his part of sentence under the Prison
Rules, but such remissions in the absence of an order of an appropriate
Government remitting the entire balance of his sentence does not entitle the
convict to be released automatically before the full life term is served. Though
under the relevant rules, a sentence for imprisonment for life is equated with a
definite period of 20 years, there is no indefeasible right of such prisoner to be
unconditionally released on the expiry of such term, including remissions and that
is only to work out the remissions that the said sentence is equated with definite
period and not for any other purpose.”
A sentence of imprisonment for life does not automatically expire at the end of 20 years
including the remissions, because the administrative rules framed under the various
Jail Manuals or under the Prisons Act cannot supersede the statutory provisions of
the concerned penal laws (BNS, 2023 or IPC, 1860). A sentence of imprisonment
for life means a sentence for the entire life of the prisoner unless the appropriate
Government chooses to exercise its discretion to remit either the whole or a part of
the sentence.
the appropriate Government has the undoubted discretion to remit or refuse to remit
the sentence and where it refuses to remit the sentence no writ can be issued
directing the State Government to release the prisoner. As such from the aforesaid
pronouncements, it is clear that a sentence for life imprisonment will run for the
entire life of the convict unless the remission is granted following law. In BNS, 2023
punishment of “life imprisonment” has been categorised into:
Imprisonment for the remainder of the natural life of the convict; and
Imprisonment of life.
Rigorous Imprisonment

Rigorous imprisonment is explained as ‘imprisonment with hard labour. The sentence

of ‘imprisonment for life’ tagged along with several offences delineated in BNS is
interpreted as ‘rigorous imprisonment for life’, and not simple imprisonment.

There are various offences which are punishable with rigourous imprisonment
including child trafficking [S. 143(5)], public servant disobeying direction under
law [S. 199], giving or fabricating false evidence with an intent to get another
convicted of a capital offence [S. 230 (1)] among others.
SIMPLE IMPRISONMENT
A person sentenced to simple imprisonment cannot be forced to work unless he
volunteers himself to do the labour. Offences under BNS, 2023 which punishable
with simple imprisonment include escape from confinement negligently suffered
by a public servant [S. 261], public servant unlawfully buying or bidding for the
property [S. 203], omission to produce a document to public servant by person
legally bound to produce or deliver it [8. 210), intentional insult or interruption to
a public servant sitting in any stage of a judicial proceeding (S. 267] among
others.
 FORFEITURE OF PROPERTY/CONFISCATION
Imposition of forfeiture of property as a punishment has consistently diminished under the
criminal laws of the country. For instance, in the earlier part of the last century,
punishment of absolute forfeiture of all properties of an offender was abolished from
the then prevailing law namely, the Indian Penal Code, 1860.

Under the BNS, 2023, the following limited range of offences have been made inter alia
punishable for forfeiture of property of the convict:

Committing depredation on the territories of any foreign state at peace with the
Government of India-S. 154;
Receiving property taken by war or depredation mentioned in Ss. 153 and 154-S. 155;
Possession of stamp, die, plate, instrument or material for making any fictious stamp-S.
186 (2); and
Public servant unlawfully buying or bidding for property-S. 203
Fine

Nearly every offence in the Sanhita is punishable with a fine imposed along with other
punishments discussed above. Sometimes, a fine is a mandatory punishment
and at other times, a discretionary penalty. The Sanhita also contains offences
which are punishable only with fine like false statement in connection with an
election (S. 175), use or possession of ficticious stamps (S. 186), causing danger
or obstruction in public way or line of navigation (S. 285), etc.
COMMUNITY SERVICE

Community Service

‘Community serivice’ has been introduced as a mode of punishment for the first time
vide the BNS, 2023. The Sanhita does not define ‘community service’ and aid
may be taken from Explanation to S. 23 of the Bharatiya Nagarik Suraksha
Sanhita (BNSS, 2023) which defines ‘Community Service’ to mean the “work
which the court may order the convict to perform as a form of punishment for the
benefit of the community for which he shall not be entitled to any remuneration”.
This punishment has been prescribed for offences falling under S. 202 (public
servant unlawfully engaging in trade), S 209 (first para) (non-appearance in
response to proclamation under S. 84 of the BNS), S. 226 (attempt to commit
suicide to compel or restraint exercise of lawful power), S. 303 (theft where value
of property is less than Rs. 5000/-), S. 355 (appearing in a public place, etc in a
state of intoxication, and causing annoyance to any person
Though the Supreme Court has clearly opined that it cannot lay down strict principles
on sentencing in the absence of a sentencing policy for the State, there are
certain guiding principles which a Court of Law needs to be mindful of.

Courts have to consider principles of proportionality, deterrence and rehabilitation. In

proportionality analysis, it is necessary to assess the seriousness of the offence
to determine commensurate punishment for the offender. The seriousness of
offence depends, apart from other things, also upon its harmfulness. The
principle governing the imposition of punishment will depend upon the facts and
circumstances of each case.
IMPORTANT PRINCIPLES OF SENTENCING
A sentence should be appropriate, adequate, just, proportionate and commensurate
with the nature and gravity of the crime, and the manner in which the crime is
committed. Apart from the gravity of the offence, the mitigating factors and
circumstances like parties settling the disputes and getting reconciled, victim
subsequently becoming part of the family, victim showing interest in getting
monetarily compensated, etc, the motive for commission of the crime, how it was
planned and committed, the prescribed punishment and the social abhorrence of
the offences are all relevant factors.
IMPORTANT PRINCIPLES OF SENTENCING
These factors help the court to discern and determine the appropriate purpose and
quantum of punishment as well as to ensure that justice has been done. The
court cannot afford to be casual while imposing a sentence since both crime and
criminal are equally important in the sentencing process. Courts must see that
the public does not lose confidence in the judicial system. Imposing inadequate
sentences do more harm to the justice system and may lead to a state where the
victim loses confidence in the judicial system and resorts to private vengeance
IMPORTANT PRINCIPLES OF SENTENCING
As per the facts of each case, an inordinate delay in the execution of the death
sentence may be regarded as a ground for commuting it. However, this not a
settled and final rule which has to be followed in each case. Such commutation is
a matter primarily for consideration of the government (appropriate government).
The Supreme Court has opined that prolonging detention to await the execution
of a sentence of death is an unjust, unfair and unreasonable procedure, and the
only way to undo the wrong is to quash the sentence of death.
The dehumanising factor of prolonged delay in the execution of a sentence of death
has the constitutional implication of depriving a person of his life in an unjust,
unfair and unreasonable way as to offend the constitutional guarantee that no
person shall be deprived of his life or personal liberty except according to
procedure established by law. The appropriate relief in such a case is to vacate
the sentence of death.
In T.V. Vatheeswaran’s case,AIR 1983 SC 361(2) a delay exceeding two years in the
execution of a sentence of death was held to be sufficient to entitle the convict to
invoke Article 21 and demand the quashing of the sentence of death. It was also
noted that the cause of the delay is immaterial when the sentence is that of
death.

But the T.V. Vatheeswaran’s case was overruled by a 3-judge Bench in Sher Singh &
Ors v. State of Punjab,AIR 1983 SC 465 wherein it was held that delay in
execution of a death sentence exceeding two years does not by itself entitle
person under sentence of death to demand quashing the sentence and
converting it into a sentence of life imprisonment.
The conflicting views on the question of whether the prolonged delay in execution of
the death sentence renders the death sentence inexecutable and entitles the
accused to demand an alternate sentence of life imprisonment, were finally
settled by a Constitutional Bench of Apex Court in Smt. Triveniben v. State of
Gujarat,AIR 1989 SC 1335 which held that undue long delay in execution of the
sentence of death will entitle the condemned person to approach the Supreme
Court under Article 32 of the Constitution, but the Supreme Court would only
examine the nature of the delay caused and the circumstances that ensued after
the sentence was finally confirmed by the judicial process. The only delay which
would be material for consideration will be the delay in disposal of the mercy
petitions or delays occurring at the instance of the Executive. No fixed period of
delay could be held to make the sentence of death inexecutable. Thus, the earlier
decision laying down the ‘two years’ rule was overruled in no uncertain terms.
The application precendent of the above-mentioned Smt. Trivenben’s case is also
dependent on the facts and circumstances of each case. For example, in Madhu
Mehta v. Union of India,(1989) 3 SCR 775 the death sentence was commuted on
the ground that the mercy petition was pending for eight years after the disposal
of the criminal appeal by the Supreme Court. But in Devender Pal Singh Bhullar v.
State of NCT of DelhiAIR 2013 SC 1975 , the convict had appealed to the
President for clemency in 2003, which was rejected in 2011-after a gap of eight
years. Bhullar sought commutation of his death penalty to life sentence by the
Supreme Court on the ground that there was inordinate delay by the President
over his plea for clemency.
The 2-Judge Bench dismissed his plea, by holding that the rules enunciated in above-
mentioned Smt. Trivenben’s case (and other associated cases) regarding
commutation of death sentence cannot be invoked in cases where a person is
convicted for offence under TADA (anti-terrorist laws) or similar statutes.
Highlighting this distinction is the fact that a fortnight later, in Mahendra Nath Das
v. Union of India,(2013) 6 SCC 253 the same Bench held that the convict’s death
sentence could be commuted to life imprisonment because much of the
inordinate delay of 12 years in the rejection of his mercy petition by the President
was unexplained, and therefore, INEXCUSABLE