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2.2 JCLJ (2022) 720

Punishment : Philosophy and law

PUNISHMENT : PHILOSOPHY AND LAW

by
Surbhi Chaudharya
Punishment has always been a very important issue in every society
as it has always been used to punish the offenders and serve justice to
the victim and society. With the evolution of society, the concept of
punishment has gone through several changes. The concept of
punishment has changed from mere punishing to reforming the
offender, thus it becomes essential to have a look at the laws, policies,
and reforms that are taking place around us. Punishment no longer
constrains itself to the traditional norms and monotonous ways of
punishing and is looking forward to reforms with the introduction of
reformation of the offender. This article aims at analyzing the different
theories and types of punishment and in order to do so, the article
maps different provisions, the theories associated, types and tries to
build an argumentative construct to achieve a realistic inference. The
main focus of the article will be punishments along with some
contemporary examples and relevant Jurisprudence behind it. It
concludes that there are immense possibilities of bringing reforms in
the punishment which will result in the overall development of
individuals and nations at large benefiting society.
Keywords: punishment, law, philosophy.
INTRODUCTION
The Indian judicial system is based on two quotes or shlokas from
the Indian scriptures : Satyameva Jayate, from Mundaka Upanishads
meaning ‘Truth only triumphs’, and Yato Dharmas Tato Jayah from
Mahabharata meaning ‘where there is dharma, there will be victory’.

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Indian society was ‘duty-oriented’, focusing more on the duty an

individual has in connection with his/her family, community, society,
nation because he was perceived as a part of nature, therefore the law
was not perceived as a necessity. With the transition in the nature of
the individual from duty-oriented to rights-oriented, differences seem
to emerge. With the rise in individualism, society also witnessed an
increase in crimes. Crime is witnessed to be a common feature in every
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society. There are certain acts that are considered a crime in one
society and may be acceptable in some other societies. This difference
lies in several factors which accompany a society such as political,
religious, cultural, and economic ideas and ideologies. In similar terms,
the punishment attached to a crime is also found to be different in
terms of severity in different societies.

The punishment can be found to be much more severe and

barbarous in primitive societies than what is observed in the modern,
symbolizing the strength of the ruler and suppression which is utilized
to prevent the commission of a similar offence in the days to come.
History also witnessed the punishment in the form of mutilation,
torture, burning, and many others are now perceived as inhumane and
abandoned in modern societies. There might be differences in the
nature of punishment inflicted, but the objective remains the same,
that is to take revenge on the criminal. With the advancement of
society, the codes and customs of punishment have been codified and
systematized. Code of Hammurabi, the Babylonian legal Code, is
regarded as the oldest by western authors. While in India,
Dharmashastra is found to lay down the rules of social order and also
punishments.
OBJECT AND DIMENSION
Punishment is inflicted on the wrongdoer with the primary objective
of punishing the offender in order to serve justice to the victim,
providing comfort and relief. At the same time, it provides relief to the
society at large seeing that justice is served as punishment is a social
reaction to a crime. It is used as means against undesirable, nefarious,
and notorious activities and behavior of such individuals and
organizations who disturb the public peace and harmony in the society.
Punishment is attributed as a preventive measure that is used for the
prevention of crime again by the criminal and at the same time, it also
deters other potential

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offenders in the future from committing the crime. Apart from

preventive measures, it is also a deterrent in nature and sanctioned
according to the severity of the crime. Punishment also serves as a
mechanism for the protection of society from criminals, thereby keeping
the structure of society intact.

Punishment is inflicted meaning it is voluntarily imposed on the

individual who has wronged someone by committing harm, which
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affects the victim as well as society at large. It is a privation and

coercive in nature, which is authorized by the state. Punishment is
perceived as something unpleasant, inflicting an ill upon the offender.
It is backed by the authority of the state in response to an act in
violation of the law of the state. The extent of punishment is dependent
on the harm done, his motives, and temptation.
THEORIES OF PUNISHMENT
Administration of justice is one of the fundamental functions of a
State. It can further be divided into two branches of administration
which are Civil and Criminal Justice. The main purpose behind this
Criminal Justice Administration is to inflict a penalty on the offender for
his/her misdeeds. It is the responsibility of the State to punish a
criminal. It is observed that since primitive times in all civilized states
multifarious theories have been developed with the changing patterns
leading to modern societies, regarding the aim of
punishment/penalisationin order to reinforce the values which were
earlier breached through the commission of an offence. From traditional
to modern, the theories of Punishment can be broadly divided into five
categories.
The foremost theory is the retributive theory, which can be regarded
as one of the most ancient practices of punishment. Justice Holmes
observed that “it is commonly known that the early forms of legal
procedure were grounded in vengeance.” The word ‘Retributive’ means
punitive or payback resulting in vengeance. Its objective is to give
punishment in the same manner in which the injury is inflicted. It can
be said that it is based on the principle of ‘an eye for an eye’, ‘a tooth
for a tooth’, ‘a nail for a nail’. Immanuel Kant, a staunch supporter of
this theory, in its justification, remarked that “evil should be returned
with evil”. The theory advocates for such

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penal provisions which will ensure that the offender suffers the same
amount of pain as was inflicted by him/her which will in turn help to
restore the social balance that was distorted by the offender. The victim
suffering a wrong at the hands of the offender was allowed to exact
revenge against him. As per Sir John Salmond, “the retributive purpose
of penalisation consists in avenging the wrong done by the criminal to
society. The thought behind this theory is to create the wrongdoer to
notice the suffering/pain.”

Deterrent theory of punishment is based on instilling fear in the

minds of prospective offenders. The term ‘to deter’ can be understood
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to mean, “abstaining from actions/deeds”. Further, the word deterrent

means, “infliction of severe punishments with an objective to stop the
wrongdoer from committing the crime again.” The theory advocates
that the article of punishment is solely not to forestall the wrongdoer
from continuing any wrongdoing, however conjointly to create him as a
precedent for others who share similar prospective offender. The
objective of the law is to adequately punish the offender to restore the
social balance and at the same time to detour the potential offenders
and people with criminal tendencies. An honorable justice once
observed that “I do not penalize you for stealing the sheep but so that
the sheep may not be stolen.” The purpose of penalisation isn't
vengeance however terror for the commission of offences. According to
Paton, “The deterrent theory stresses the need of protective society, by
therefore treating the prisoners, so that others are deterred from
breaking the law.”
The next theory advocated is the preventive theory which is also
called the ‘theory of disablement’ by disabling the criminal to prevent
him from committing another crime. For instance, a person guilty of
murder is punished with imprisonment for life or the death penalty in
order to prevent him from committing a similar crime again. This theory
is based on the proposition, “not to avenge crime but to prevent it”,
with the aim to disable the offender. The preventive theory of
punishment received support from utilitarians, such as Bentham,
Austin, Stuart Mill as it had a humanizing ascendancy on criminal law.
With the increasing popularity of the preventive theory, the institutions
of prison or jail gathered momentum. By confining the criminal in
prison, he is prevented from the commission of any other offence.

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Imprisonment of the offender is regarded as the topmost mode of

punishment as it acts as an imperative preventive measure.

With the change in time, several developments have been made in

the field of criminal justice which has brought a progressive change
with a new approach to the concept of punishment. According to the
reformative theory, the purpose of punishment is to rehabilitate the
criminals. It sought to bring in a change in the perspective of an
offender in order to reshape his thoughts and help him mend to
become a law-abiding member of society. The theory is focused on
making improvements in the offender by way of reforming him through
correctional schools or organizations. In the case of Mohamad Giasuddin
v. State of Andhra Pradesh1 , it was observed that reformation should be
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the dominant objective of punishment and during incarceration, every

effort should be made to recreate the good man out of the convicted
prisoner. Justice V.R. Krishna Aiyer advocating reformative punishment
observed that “every sinner has a future”. The object of the punishment
should be to rehabilitate the offender. The criminal must be educated
and trained with some kind of skills during his term of imprisonment so
that he/she can lead a good life once released from confinement.
The expiatory theory of Punishment has its basis on morals. It is also
known as the ‘theory of penance’. It observes that punishment is
essential to ensure the purification of the offender so that he could
realize his own guilt. Manu observed that “Men who are guilty of a
crime when condemned by the king become pure and go to heaven in
the same way as good and virtuous men go”. According to this theory,
repentance or expiation by the offender itself serves as a punishment.
The criminal/offender should be pardoned if he expatriates or repents.
This theory was prevailing in the ancient Indian criminal law done by
way of chanting mantras, fasting, and other forms.

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TYPES OF PUNISHMENT
Penal Code, 1860 under its Section 53 stipulates five types of
punishments which are Death, Imprisonment for life which can be
divided into two kinds namely - rigorous (with hard labour) and simple,
Forfeiture of property, and lastly fine.
Death Penalty or Capital Punishment is the gravest form of
punishment. It is even scrapped by more than half of the countries in
the world. A death sentence or capital punishment may be awarded
only in the ‘rarest of rare cases. In the landmark judgment of Machhi
Singh v. the State of Punjab,2 it was observed that the death penalty
can be awarded only in the’ rarest of rare cases. The court explained
the concept of rarest of rare in this case and held that “when the
collective conscience of the community is shocked that it will expect the
holders of the judicial power centre to inflict death penalty inspective of
their personal opinion as regards desirability or otherwise of retaining
death penalty can be awarded. The death penalty is not a rule but an
exception”.3 Garofalo, a criminologist who was a staunch supporter of
the death penalty advocated it as the most efficient way of eradicating
criminals. Penal Code, 1860 prescribes the death penalty for certain
offenses which are of grave nature. For instance, Waging, attempting,
or abetting war, against the Government of India which is mentioned
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under Section 121. Some other such provisions are section 132, Section
194, murder under Section 302, abetment to suicide under Section
305, kidnapping for ransom (Section 364 A), dacoity with murder
(Section 369).
The next important punishment is imprisonment for life which in
general terms refers to a confinement sentence that runs throughout
the remaining period of a convict's natural life. In the landmark
judgment of K.M. Nanavati v. the State of Maharashtra,4 the court
observed that “imprisonment for life means rigorous imprisonment for
life and not simple imprisonment.” Imprisonment stands to be divided
into two types - Rigorous and Simple. Rigorous

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Imprisonment includes hard labor such as grinding of corn, digging of

earth, drawing of water and cutting of wood, etc. In deciding whether
the imprisonment should be rigorous or simple, Section 60 of I.P.C.
plays a pivotal role, it is in the discretion of the competent Court to
decide, whether the imprisonment shall be fully rigorous, or wholly
simple or that any part of such imprisonment shall be rigorous and the
rest simple. Some of the provisions of the Penal Code, 1860 directing
rigorous imprisonment as a form of punishment are Section 194,
Section 449. Another aspect of rigorous imprisonment is Solitary
Confinement which can be understood as retaining a prisoner
thoroughly, secluded from any form of external contact. An
unharmonious and habitual offender may be confined in a separate cell
to correct his conduct. It can be awarded only in the case of rigorous
imprisonment. It can be imposed by subject to certain limitations such
as the term of solitary confinement should not exceed three months of
total imprisonment, it cannot be inflicted where legal confinement is
not part of the punishment directed. As per Section 74 of I.P.C., the
term of solitary confinement cannot exceed more than fourteen days at
a time and it cannot be imposed consecutively but at an interval period
of time. Simple imprisonment is imposed in the case of small or trivial
offences which are not of serious nature such as wrongful restraint,
defamation, etc. In simple imprisonment, the offender is not subjected
to any hard manual during the term of imprisonment. Some offences
which are punishable with simple imprisonment under the Penal Code,
1860 are denying to take oath under Section 178, defamation under
Section 500, misconduct by a drunk person, under Section 510, and
many others.

Another form of punishment under the Penal Code, 1860 is

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‘forfeiture of property’ meaning withdrawing of the rights of the

property of the offender permanently by the State. Forfeiture always
occurs after the seizure, and seizure does not necessarily lead to
forfeiture. Forfeiture of property is now widely eradicated except in
certain types of offences. Under the Penal Code, 1860 property can be
fortified under Section 125, 126, 127, IPC. The Courts in the form of
punishment can also impose a fine/penalty as an alternative for
imprisonment and it can also be added as an addition to the
imprisonment. The Penal Code, 1860, provides for a fine along with
imprisonment in respect of a majority of offences. In case of default,
the convict may be subjected to imprisonment.

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CONCLUSION
The concept of punishment is old as the beginning of civilization.
With the change in time and circumstances, the concept of punishment
has also undergone several changes. Historically, the punishment was
concerned with inflicting pain and torture to punish the offender. But
with the change in time, punishment in modern times is more focused
on the rehabilitation of the offender in order to streamline him/her into
society. Some of the components of the theories of punishment
mentioned above can be compounded. It is imperative today that more
focus is made on rehabilitation when it is attainable and deterrence
when it is a necessity. Restoration in addition to retribution is
suggested. The ancient along with modern elements can be combined
to balance against one another, helping to decrease the commission of
a crime while inflicting no more punishment than what is deserved.
Therefore, a reformative approach to punishment must be the primary
purpose of the law as well as the state. To streamline such changes it is
imperative that changes should be made in the legal provisions of the
state and at the same time, the state should also provide the concerned
authorities with infrastructure to support the offenders in order to
rehabilitate them by providing them with essential skills for their
survival.
———
a University of Delhi, Delhi, India

Received 27 December, 2021; Accepted 09 January, 2022; Published 13 January, 2022

1 Giasuddin v. State of Andhra Pradesh, (1977) 3 SCC 287 : AIR 1977 SC 1926, SCR 153
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2 Machhi Singh v. State of Punjab, (1983) 3 SCC 470 : AIR 1983 SC 957, SCR 413

3
K. Venkataramanan, ‘Death penalty comes with the jurisprudence of outrage’ (The Hindu, 13
May, 2017) <https://www.thehindu.com/opinion/lead/the-jurisprudence-of-
outrage/article18440436.ece> accessed 27 December, 2021

4 K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, SCR 567

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