Punishment Philosophies: Retribution, Reformation, and Finding Balance

Abstract

Punishment is considered an aftermath of a criminal act done by a criminal throughout history. In ancient and medieval times barbaric punishments like cutting hands for theft and gouging out eyes for molestation were pretty common to hinder those crimes. As time passed and the rule of law was established various scholars and jurists considered the role of punishment in society. Civil law has helped lay down multiple offences, the punishments attached to them, and how a victim can avail of those remedies through the courts of law. The establishment of these criteria has made the whole scenario more transparent and open to ordinary people all over the globe.

Punishment is inflicted upon a guilty person to deter his future activities and to send a message to society so that the supremacy of law is maintained throughout the country. It helps to deter the proliferation of similar crimes in the future by embedding a sense of fear in people’s minds regarding the consequences of these crimes. Punishment has also been regarded as an effective way to reform the inmates by reforming their guilty conscience so that they can become better people and contribute to the well-being of society when released from prison. Lately, the system of compensation is also considered as a form of punishment by some contemporary jurists when a person is compensated for his loss by the perpetrator so that he can be placed in the same position as he was if the crime has not been committed.

Jurisprudential aspect of theories of punishment

It is a matter of fact that no society has come to existence to date which can eliminate crimes in its totality. Some crimes are bound to take place and the existence of a proper system of laws will only help to minimise the number of crimes in the future by reducing its grievousness by inflicting reasonable punishment upon the perpetrator. The role of the state is to implement those laws within its political boundary effectively and to bring the necessary amendments and changes with time so that its effectiveness is maintained. Roscoe Pound observes; “Law is the body of principles recognized or enforced by public and regular tribunals in the administration of justice”.

Theories of Punishment are essentially based upon two philosophies of law which are the utilitarian principle and the retributive principle. The theory of utility is based on the fact that the total good produced by the infliction of punishment should exceed the wrong produced by the commission of the crime. This philosophy does not see crime as an end to all the suffering but as a means to bring societal benefits. Its emphasis is to bring the maximum amount of happiness by inflicting a reasonable amount of pain upon the perpetrator so that a balance is maintained in society between the good brought by the punishment and the punishment itself. On the contrary, the main focus of the retributive theory is the punishment itself and the disobedience of law is a sufficient reason in itself to inflict pain upon the perpetrator to maintain the law and order in the society.

Retributive theory of punishment

The retribute theory of punishment is based on the idea of ‘an eye for an eye and a tooth for a tooth’. It is based on the idea that if a pain is committed upon a person by someone then a reasonable amount of pain should be inflicted upon the perpetrator to meet the ends of the justice. The retributive theory essentially focuses on harming the person and degrading him in the eyes of society. It holds that a person who has acted contrary to the law does not deserve to be treated with respect and on equal footing to other ordinary law-abiding citizens of the country. Penal laws of many countries including ours are based upon this theory itself.

HLA Hart is considered the pioneer of this school of punishment. According to Hart to inflict punishment upon the perpetrator a minimum of 3 tenets needs to be fulfilled. They are as follows[1]–

• A person may be punished only if he voluntarily does something wrong
• The punishment must match or be equivalent to the wickedness of the offence
• The Justification for punishment is the moral justness of returning suffering for evil voluntarily done.

In contrast to the positive theory of retribution which is primarily a ‘backwards-looking approach’[2] and intends to punish for all kinds of wrongs which happened in the past, the theory of utilitarianism focuses on the future and focusses on inflicting a reasonable amount of pain. English philosopher Jemmy Bentham is a pioneer of this thought and promulgated his ideas in his ‘13 Cannons of Penal Laws’. Punishments may be avoided when they cause more harm than good but in retributive theory, if there exists a wrong in the past then it must be accompanied by some punishment. For example, the punishment of death is only inflicted in the rarest of rare offences. Still, in retribution, death should be inflicted if a crime of such severity is caused undermining the values of the society.

The theory of retribution is often criticised for a variety of reasons. one of them is fixing the yardstick for inflicting punishment for certain offences. Marrying people of the same sex is considered liberty in some societies while in others it is a punishable offence. Hence this theory is not universal throughout all societies and is considered arbitrary by many scholars. Secondly, retributive theory cannot provide a good approach when a crime such as defamation or moral turpitude is committed. In such cases when no physical or even mental harm is inflicted then according to the retributive approach no punishment should be imposed but as we all know defamation and blasphemy are considered crimes in many societies. Lastly, as said earlier, retribution works on the principle that where there is a wrong, there should be a punishment; hence, concepts of pardon and mercy do not hold good in this school of punishment.

Reformative theory of punishment

The reformative method is founded on the ideas of M.K. Gandhi, who believed that “crime should be hated and not the criminal” and that “every individual is intrinsically good.” It is a more humanitarian way of dealing with the offenders. Protecting the rights of the perpetrator and re-educating him in the prison cells are the pillars of this approach. Punishment should be more of a reformation than deterrence is the underlying principle of the reformative theory of punishment. Our country has also adopted various tenets of reformation theory in our laws. Section 4 of the Probation of Offenders Act allows the discharge of a perpetrator if he shows signs of an improved man and sections 54 and 55 of the Indian penal code which have the provisions of commutation of death and life sentence respectively are the primary examples of this approach[3]. In the case of Gulab Singh v. Yuvraj Singh[4], the Supreme Court of India held that our legal system is essentially based on the principle of reformation.

The theory of reformation has various benefits but at the same time, it is considered to be an impractical approach by many scholars for a variety of reasons. First and foremost, the critique is that the theory of reformation is not a deterrent theory and hence the probability of the happenings of similar types of crimes in the future is pretty high. Secondly, this theory has an undue focus on the well-being of the perpetrator and reforming him and not on giving justice to the victims. Lastly, in countries like India where there is so much population and too little resource, reformation of perpetrators and giving due recognition to individual rights seems a utopian dream.

Conclusion

The many theories of punishment, such as the retributive and reformative ones, emphasize, in the end, how difficult it is to deal with criminal behaviour in society. Retribution emphasizes just punishment for previous transgressions, whereas reformative theory promotes personal growth and the inherent goodness of people. The continuous discourse about these theories highlights the obstacles in attaining a comprehensive and efficient criminal justice system. Finding a balance between punishment, deterrence, and reformation is still important in legal discourse, even as cultures change. After all, pursuing justice necessitates a careful comprehension of these theories as well as a dedication to modifying legal frameworks to accommodate the changing demands of a changing global environment.

Thankfully some of the changes are already included in the new BNS and BNSS. People committing petty crimes which attract lesser will now be indulged in community services under section 4 of BNS[5] which justifies the word ‘Nyaya’ in the Sanhita. Under section 303(2)[6] of the BNS, a Higher degree of punishment is prescribed for the second time conviction for the offence of theft and at the same time in case the stolen property is returned safely to the owner, provision for community services is added. Various new crimes are added in the new Sanhita and the punishment for various existing crimes is increased which indicates the fact that the new act is more retributive whereas the provision of community service makes it more reformative. This is a noble and very good approach to maintaining a balance between these two approaches of punishment.

This article is authored by Mr. Shivam Tah, a second-year student at Institute of Law Nirma University.

[1]H A Bedau, Retribution and the Theory of Punishment, 75 Journal of philosophy (1978)

[2]Md. Ezazul Karim, The Critical Evaluation of the Different Theories of Punishment, 2 The Jahangirnagar Review

[3]Shraddha Jain, Reformative theory of punishment, Ipleader,https://blog.ipleaders.in/reformative-theory-of-punishment/

[4]Gulab Singh v. Yuvraj Singh, Criminal Appeal No 35 of 1986

[5]The Bhartiya Nyaya Sanhita,2023, Sec4. Actsof Parliament,2023(India)

[6] The Bhartiya Nyaya Sanhita,2023, Sec 303, Acts of Parliament,2023(India)