The concept of justice is as old as the human society itself. Every man wants others to be righteous and just towards him, however he himself being ‘selfish’ by nature may not be reciprocal in responding justly. Hence, some kind of external force is necessary for maintaining an orderly society.
In the early stage when the society was primitive, private help and self-help were the only remedies available. In the second stage, the State came into existence and its functions were only persuasive in nature. In the third stage, wrongs could be redressed by payment of compensation by the wrongdoer to the victim who has been wronged. Eventually, the State exerted its authority and took upon itself the responsibility of administering justice and punishing the wrongdoer. The justification is for different punishments are reflected in various theories. These theories are dynamic and their relevance is subject to change with the changes in societal norms.
The deterrent theory of punishment is before all things deterrent and the chief aim of law of crimes is to make the evil doer an example and a warning to all other like-minded. Salmond asserts that offences are committed by reason of a conflict of interest between the offender and the society. Punishment prevent such offences by destroying the conflict of interest, by making the act injurious to the wrongdoer himself. Manu saw punishment, or ‘Danda,’ as a source of righteousness since the threat of punishment deterred people from doing wrongdoing.
The retributive theory of punishment asserts that evil should be returned by evil without any regard to the consequence. It is based on the maxim ‘an eye for an eye’. The suffering that will be inflicted on the offender as a result of his illegal act must surpass the pleasure that he will gain from it. The concept of expiation is closely linked to that of retribution, and it refers to the act of erasing guilt via the imposition of a suitable penalty. This in other words means guilt plus punishment equals innocence. The philosophy underlying expiatory theory is that to suffer punishment is to pay a debt due to the law that has been violated. This theory occupied an important place in Indian penology as expiation in the form of penance.
The preventive theory suggests disabling the offender through measures such as death punishment, imprisonment, forfeiture of property, suspension of licence, etc. According to G.W. Paton, preventive theory aims to disable the prisoner in order to prevent him from committing crime.
The reformative theory is based on the principles of humanism that even if an offender commits a crime, he does not cease to be a human being. Thus, while awarding punishment the judge must take into account the age and character of the offender, his antecedents and also the circumstances under which he committed the crime. This theory is based on maxim ‘hate the sin not the sinner’. Punishment is effective only if it looks to the future and not the past.
Deterrent, retributive, preventive, and reformative punishment theories all have advantages and disadvantages. However, none of them pay attention to the victim’s recompense. The modern perspective tries to prevent the crime from happening again, but it must equally attempt to compensate the victim.
The Supreme Court in TK Gopal (v) State of Karnataka observed, “The law requires that a criminal should be punished, but despite him committing the crime should be entitled to all basic rights, human dignity and human sympathy.”
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