UNIVERSITY INSTITUTE OF LEGAL STUDIES

PANJAB UNIVERSITY

A Project Report submitted as a part of the curriculum of B.Com. LLB(Hons.) in the

subject of Criminology, Penology and Victimology.

TOPIC : Punitive approach and the contemporary role of punishment

SUBMITTED TO: SUBMITTED BY:

Dr. Purushotam Rashi Kapil
198/18
B.Com. LLB(Hons)
Section D

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ACKNOWLEDGEMENT
The success and final outcome of this project required a lot of guidance and assistance
and I am extremely privileged to have got this all along the completion of my project.
All that I have done is only due to such supervision and assistance.
I respect and thank Dr. Purushotam for providing me an opportunity to do the
assignment and giving me all support and guidance, which made me complete it duly.
I am extremely thankful to her for providing such a nice support and guidance till the
completion of my assignment by providing all the necessary information.
I am thankful to and fortunate enough to get constant encouragemet and support.

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TABLE OF CONTENTS

• Introduction
• Penology
• Punishment
• Punitive approach and contemporary role of punishment
• Criticism
• Crime and punishment and Rehabilitation: a Smarter Approach

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 INTRODUCTION

Each society has its own way of social control for which it frames certain laws and also mentions
the sanctions with them. These sanctions are nothing but the punishments. The kinds of
punishments given are surely influenced by the kind of society one lives in.

Penology is a multi-disciplinary subject that aims to study and evaluate the application of penal
sanctions to wrongdoers. Some of the major questions which are engaging the attention of modern
penologists are whether the traditional forms of punishments should remain the exclusive or
primary weapons in restraining criminal behaviour or should be supplemented and even replaced
by a much more flexible or diversified combination of measures of treatment of a reformative,
curative and protective nature.

And if so, to which categories of offenders should these improvised measures be applicable and
how should their choice in particular cases be determined? And finally, how could the reintegration
of offenders into society be placed so as to efface the penal stigma and to cut off the supply of
potential recidivists at its source?1 All these issues are subject matter of penology which is
considered as a sister of criminology.

It has been generally accepted that the attitude towards crime and criminal at a given time in a
society represents the basic values of that society. Government has several theories to support the
use of punishment to maintain order in society. Penology studies various these subjects.

1
Leon Radzinowicz : In Search of Criminology,

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 PENOLOGY

 DEFINITION

Penology, also called Penal Science, the division of criminology that concerns itself with the
philosophy and practice of society in its efforts to repress criminal activities. As the term signifies
(from Latin poena, “pain,” or “suffering”), penology has stood in the past and, for the most part,
still stands for the policy of inflicting punishment on the offender as a consequence of his
wrongdoing; but it may reasonably be extended to cover other policies, not punitive in character,
such as probation, medical treatment, and education, aimed at the cure or rehabilitation of the
offender and this is in fact, the accepted present sense of the term.

According to Dean J.Champion, “Prisons are also called penitentiaries. The word penitentiary was
coined in the 18th century because certain groups believed that through solitary religious study of
Bible, prisoners would become penitent(remorseful) and reform their behaviour. The study of
theories and punishment is called Penology.”

According to MS Sabnis, “Penology is sometimes described as a science of punishment, although

one may find therein more of humanism than of science. Penology is at best, a body of
systematized knowledge of management of penal measures and penal institutions so designed that
a minority among people who dare violates the established norms of individual and social conduct
and behaviour codified as law by a given society at a given time and place are kept out of
circulation for the certain period of time in order to enable the rest of society, which is
predominantly law abiding, to constitute its socially useful activity without let or hindrance.”

According to Dr.P.K.Sen “Penology lays down the fundamental principles that should guide the
state, or the sovereign authority in framing the schemes of punishments.”

Basically penology is the part of the criminology, which studies the treatment of offenders till they
are free from imposed sentence. It includes the theories of punishment, different kinds of
sentencing of process, penal institutions, rights of prisoners and all provisions relating pre-mature
release or privileges of prisoners.

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  OBJECTIVES OF PENOLOGY

The principal objectives of penal science are:

1. to bring to light the ethical bases of punishment, along with the motives and purposes of society
in inflicting it;
2. to make a comparative study of penal laws and procedures through history and between nations;
and, finally,
3. to evaluate the social consequences of the policies in force at a given time.
Thus conceived, penology represents a grouping of studies, some of which, dealing with the aims
and the moral or social justifications of punishment, date from a remote past, while others, having
to do with the wider social implications of the system, have scarcely yet made a beginning.

 ORIGIN AND DEVELOPMENT OF PENOLOGY

Modern penology dates from the publication of Cesare Beccaria’s pamphlet on Crimes and
Punishments in 1764. This represented a school of doctrine, born of the new humanitarian impulse
of the 18th century with which Jean-Jacques Rousseau, Voltaire and Montesquieu in France
and Jeremy Bentham in England were associated. This which came afterwards to be known as the
classical school assumed every criminal act to be a deliberate choice determined by a calculation
of the prospective pleasures and pains of the act contemplated. All that was needed to overcome
the criminal purpose was to provide for each and every crime a penalty adequate to overbalance
its assumed advantages. Excessive penalties such as death were unnecessary and therefore unjust.
The classical school was followed, a generation later, by the neoclassical school of the
revolutionary period in France which modified Beccaria’s rigorous doctrine by insisting on the
recognition of varying degrees of moral and therefore of legal responsibility, as in the case of
children and the insane as well as of mitigating circumstances in general. The doctrine of the
“individualization of punishment”—that is to say, of the punishment of the individual rather than
of the crime committed by him, which is of commanding importance in present-day penology is
only a development of this fundamental principle of the neoclassical school.

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This normal historical development of penology was interrupted during the last quarter of the 19th
century by the widespread acceptance of the theory of crime and its
treatment promulgated by Cesare Lombroso and his disciples. This, at first known as the Italian or
continental school of criminology was later named the positive school, so-called because it pursued
the positive methods of modern science. Its fundamental doctrine was that the criminal was
doomed by his inherited traits to a criminal career and was therefore a wholly irresponsible actor.
Society must, of course, protect itself against him, but to punish him as if he were a free moral
agent was as irrational as it was unethical.
Although the enthusiasm for the doctrines of the positive school waned and the alleged facts on
which they were based were largely discredited, it nevertheless left a valuable legacy of influence.
To it must be given much of the credit for the present active tendency to make the mental study of
the criminal an essential part of his diagnosis, a fact that has given the psychologist and,
particularly, the psychiatrist a leading place in the development of modern penological theory.
From studies such as these, criminologists discovered that there was no single formula that
accounted for all violators of the penal code while the policy of the individualization of punishment
took on the form of individualization of treatment.
Indeed, the emphasis turned to research—research into the factors, whether individual or social
that determine criminal activities and research into the resources of the community for making
such disposition of the offender as will effectually protect the former without destroying the latter.2

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 PUNISHMENT

 DEFINITION

Philosophical

Various philosophers have presented definitions of punishment. Conditions commonly considered

necessary to describe an action as punishment are that

1. it is imposed by an authority,
2. it involves some loss to the supposed offender,
3. it is in response to an offence and
4. the human (or other animal) to whom the loss is imposed should be deemed at least
somewhat responsible for the offence. 3

2
https://www.britannica.com/topic/penology rertrieved
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Psychological

Introduced by B.F. Skinner, punishment has a more restrictive and technical definition. Along with
reinforcement it belongs under the operant conditioning category. Operant conditioning refers to
learning with either punishment (often confused as negative reinforcement) or a reward that serves
as a positive reinforcement of the lesson to be learned. In psychology, punishment is the reduction
of a behavior via application of an unpleasant stimulus ("positive punishment") or removal of a
pleasant stimulus ("negative punishment"). Extra chores or spanking are examples of positive
punishment, while removing an offending student's recess or play privileges are examples of
negative punishment. The definition requires that punishment is only determined after the fact by
the reduction in behavior if the offending behavior of the subject does not decrease it is not
considered punishment. There is some conflation of punishment and aversives, though an aversion
that does not decrease behavior is not considered punishment in psychology. Additionally,
"aversive stimulus" is a label behaviorists generally apply to negative reinforcers (as in avoidance
learning), rather than punishers.

Socio-biological

Punishment is sometimes called retaliatory or moralistic aggression, it has been observed in

all species of social animals,leading evolutionary biologists to conclude that it is an evolutionarily
stable strategy, selected because it favors cooperative behavior.4

Examples against sociobiological use

One criticism of the claim of all social animals being evolutionarily hardwired for punishment
comes from studies of animals, such as the octopuses near Capri, Italy that suddenly formed
communal cultures from having, until then lived solitary lives. During a period of heavy fishing
and tourism that encroached on their territory, they started to live in groups, learning from each

3
Hugo, Adam Bedau (February 19, 2010). "Punishment, Crime and the State". Stanford Encyclopedia of
Philosophy.
4
Fehr, Gätcher, Ernst, Simon (10 January 2002). "Altruistic punishment in humans". Nature. 34: 137–140.

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other, especially hunting techniques. Small, younger octopuses could be near the fully grown
octopuses without being eaten by them, even though they, like other Octopus vulgaris,
were cannibals until just before the group formation]. The authors stress that this behavior change
happened too fast to be a genetic characteristic in the octopuses, and that there were certainly no
mammals or other "naturally" social animals punishing octopuses for cannibalism involved. The
authors also note that the octopuses adopted observational learning without
any evolutionary history of specialized adaptation for it.5

There are also arguments against the notion of punishment requiring intelligence, based on studies
of punishment in very small-brained animals such as insects. There is proof of honey bee workers
with mutations that makes them fertile laying eggs only when other honey bees are not observing
them, and that the few that are caught in the act are killed. This is corroborated by computer
simulations proving that a few simple reactions well within mainstream views of the extremely
limited intelligence of insects are sufficient to emulate the "political" behavior observed in great
apes. The authors argue that this falsifies the claim that punishment evolved as a strategy to deal
with individuals capable of knowing what they are doing. 6

In the case of more complex brains, the notion of evolution selecting for specific punishment of
intentionally chosen breaches of rules and/or wrongdoers capable of intentional choices (for
example, punishing humans for murder while not punishing lethal viruses) is subject to criticism
from coevolution issues. That punishment of individuals with certain characteristics (including
but, in principle, not restricted to mental abilities) selects against those characteristics, making
evolution of any mental abilities considered to be the basis for penal responsibility impossible in
populations subject to such selective punishment. Certain scientists argue that this disproves the
notion of humans having a biological feeling of intentional transgressions deserving to be
punished.7

5
"Observational Learning in Octopus vulgaris." Graziano Fiorito, Pietro Scotto. 1992.
6
How the Body Shapes the Way We Think: A New View of Intelligence, Rolf Pfeifer, Josh Bongard, foreword
by Rodney Brooks. 2006
7
Friedrich Nietzsche (1886) Beyond Good and Evil: Prelude to a Philosophy of the Future

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However Oxford dictionary defines “Punishment means to make an offender suffer for an
offence.” Sir Walter Moberly while accepting the definition of punishment as given by Grotious,
suggests that punishment presupposes that-

(1) what is inflicted is an ill, that is something unpleasant;

(2) It is sequel to some act which is disapproved by authority;
(3) There is some correspondence between the punishment and the act which has evoked it;
(4) Punishment is inflicted, that it is imposed by someone’s voluntary act;
(5) Punishment is inflicted upon the criminal, or upon someone who is supposed to be
answerable for him and for his wrong doings. 8

 OBJECT

In Halsburys Law of England, the object of punishment is as follows: “The aims of punishment
are now considered to be retributive, justice, deterrence, reformation and protection and modern
sentencing policy reflects a combination of several or all of these aims. The retributive element is
intended to show public revulsion to the offence and to punish the offender for his wrong conduct.
The concept of justice as an aim of punishment means both that the punishment should fit the
offence and also that like-offences should receive similar punishments. An increasingly important
aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender
from further offences but also potential offenders from breaking the law. 9

 DEVELOPMENT IN THE ATTITUDE TOWARDS PUNISHMENT

During the 18th and 19th centuries, several philosophers and social reformers achieved prominence
through their criticism of corporal punishment.

Montesquieu criticised French Penal Code and inhumane punishments suffered by prisoners.
During the late 18th century, British philosopher and economist Jeremy Bentham, who founded
the doctrine of utilitarianism, became a critic of penal policy in England. He applied his philosophy
of utilitarianism to crime and punishment. He believed criminals engage in crime for pleasure and

8
N.V.Paranjape, Criminology, Penology with Victimology 294 (Central Law Publications, 17th Ed., 2018)
9
Punishment in Indian Legal System, available at www.legalservicesindia.com

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calculate the gains and losses associated with criminal conduct. He proposed that the punishment
inflicted should offset the pleasure offenders achieve from their crimes. 10

One of the most influential writers of time, Italian Jurist and economist Cesare Beccaria, objected
to judicial tyranny and injustice, as well as torturous punishments. Beccaria’s work contained the
basic principles of the classical school of criminology. These include-

(1) the best approach to crime is prevention and prevention is maximized by establishing
written legal codes that define prohibited behaviours and punishments for them;
(2) law serves the needs of society rather than enforces moral virtues and therefore should be
limited to the most serious offences;
(3) all persons should be considered innocent until proven guilty;
(4) punishment should be swift and certain, with no regard for personalities or social
characteristics of offenders;
(5) punishment should be retributive and the degree of retribution should fit the seriousness of
the crime.11

Many countries including Canada, England, France and Italy have incorporated Beccaria’s
principles into their legal system and jurisprudence.

Throughout history and in many different parts of world, societies have devised a wide assortment
of punishment methods. In ancient times, the sense of fear and ignorance led to barbarous method
of treatment of offenders. The concept of law and order was not yet known. Basis of punishment
was retributive, vengeance and deterrent. In medieval period, religion had great impact on the
administration of justice and penal policy. Punishments were mixed up with the religious notions
of cleansing of the soul for the reformation of criminal. In modern penology, it has been generally
accepted that punishment must be in proportion to the gravity of the offence. Reformation and
rehabilitation becomes more.

It must be admitted that the provisions relating to punishment in the IPC have become somewhat
obsolescent and out of tune with the modern trends in the field of penology. The object of

10
Krishna Pal Malik, Penology Sentencing Process & Treatment of Offenders, 12 (Allahabad Law Agency, 1st Ed.,
2006)
11
Ibid

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punishment in the scheme of the modern social defence is correction of the wrongdoer and
wrecking gratuitous punitive sentence on the criminal whose so called act, in many cases, may be
mere manifestation of a deep rooted psychosocial maladjustment for which society itself may be
responsible in a number of ways. It has been rightly said that society gets the criminal it deserves.
The highest court of the land too has in a number of decisions adversely commented upon this
archaic nature of the main penal law of India. Some attempts have been made recently to
modernize our penal system through piecemeal legislation.

In Ratan Lal v. State of Punjab12, the Hon’ble Supreme Court observed that the criminal
jurisprudence dealing with the imposition of sentence has undergone a drastic change with the
enactment of probation of offender’s act which is a milestone in the progress in the modern liberal
trend of reform in the field of penology. It is the result of the recognition of the doctrine that the
object of the criminal law is more to reform the individual offender than to punish him.

In Shivaji v. State of Maharashtra13, Justice Krishna Iyer observed that “two men in there twenties
thus stand convicted of murder and have to suffer imprisonment for life because the punitive
strategy of our Penal Code does not sufficiently reflect the modern trends in correctional treatment
and personalized sentencing. When accused person are of tender age then even in the murder case
it is not desirable to send them beyond the high prison walls and forget all about their correction
and eventful reformation.

In Sham Sunder v. Puran14, the Hon’ble SC held that in imposing sentence the main consideration
is the character and magnitude of offence, but the court cannot lose sight of the proportion which
must be maintained between the offence and the penalty and the extenuating circumstances which
might exist in the case.

In Jamal v. State of Uttar Pradesh15, observed that in operating the sentencing system, law should
adopt the corrective machinery or deterrence based on factual matrix. The sentencing process
should be stern where it should be, and tempered with mercy where it so warrants to be. The facts
and given circumstances in each case, the nature of crime, the manner in which it was planned and

12
AIR 1965 SC 444
13
1973 Cr.LJ 1783(SC)
14
AIR 1991 SC 8
15
(2010) 12 SCC 532

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committed, the motive for the commission of crime, the conduct of the accused, the manner of
weapons used and all other attending circumstances are relevant facts, which would enter into the
area of consideration while awarding the sentence.

PUNITIVE APPROACH & CONTEMPORARY ROLE OF PUNISHMENT

Reaction to crime has been different at different stages of human civilization and even at given
time they have been different in various societies. It has been generally accepted that the attitude
towards crime and criminal at a given time in a society represents the basic values of that society.16
There are three types of reactions discernible in various societies:

I. First is traditional reaction, which can be termed as punitive approach. It regards criminal
as bad, depraved and dangerous person for whom infliction of punishment is only
alternative to eliminate him from the normal society. The object under this approach is to
inflict punishment on the offender in order to protect society from him.
II. Second approach considers the criminal as a victim of his circumstances and a product of
various factors operating within the society. It is of relatively recent origin. It considers the
criminal as a sick person requiring treatment so it is termed as therapeutic approach.
III. Third and the most recent reaction is preventive approach as it lays emphasis on eliminating
those conditions which are responsible for crime causation.

However, it needs to be understood that these three approaches are not mutually exclusive. They
overlap as well as sometimes coexist in society. The punitive approach has its focus on the damage
caused to the victim and the society at the same time. The criminal is treated as something
incapable of being reformed. This approach, even today, remains a potent force though not many
will justify it in the same way, as was done earlier.

Punitive reaction justification

Various justifications have been given to explain human psychology involved in the urge in people
to punish offenders. Donald R. Crassey tried to answer this on the basis of his “Scapegoat

16
S.M.A.Qadri, Criminology & Penology 127 (Eastern Book Company, 6th Ed. , 2011)

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hypothesis”. In this the criminal is made a scapegoat to give relief or gratification to the members
of the community. This relief or gratification is due to their sense of freedom from their own guilt
feelings about the crime, as a result of punishment given to the offender. This is based on the
theory that all human beings have criminal propensities though in most cases they may not be
reflected in actual behaviour. If no outlet to such feelings is provided by punishment, even lynching
may be resorted to by the people.

According to another view, the hostile reaction to the criminal works as a bond between non-
criminal members of the community. The bond represents the reassertion of moral principles
common to the members of the society and serves as a reminder of taboos to all of them. Private
vengeance is a source of injustice and inhumanity as well as of social disorder.17

Though the idea regarding the necessity may differ, almost all the justifications are offered on the
basis of “grim necessity”. It is only the extreme and pure retributionists who perceive punishment
as inherently good. Justification for the punishment is also argued on the basis of “social contract”
which creates a “give and take” situation.

To enjoy individual rights and benefits, it is only reasonable and inevitable that individuals curtail
their freedom vis-a-vis others and in the event of their failure to do so, punishment must be inflicted
on them.

The important general principles of punishment are:

(1) The system of punishment cannot be based exclusively on the nature of the crimes
committed, but must be conditioned by the personality of the offenders. The same kind of
crime may be committed by entirely different types of criminals. Punishment must,
therefore, be suited to different categories of criminals.
(2) Punishment must not only be a reaction against the crime itself but must also aim at
preventing the offender from committing further crimes. It is, therefore, obvious that if in
certain cases the traditional punishment does not fulfill this latter function, it must be
replaced by some other means.18

17
Ibid
18
Punishment in Indian Legal System, available at www.legal services india.com

15
The rationalisations of punishment may be divided into two classes, based on:

1 Retribution Theory
Retribution has been regarded as a very important feature in the punitive scheme.
Retribution means “punitive”, “retaliatory”, “vengeful”, “revengeful”, “to pay back”. It is
based on the principle of ‘an eye for an eye and tooth for a tooth’. 19

It is based on retributive justice which suggests that evil should be returned for evil without
any regard to consequences. This theory underlines the ides of vengeance or revenge.
Supporting the theory of retribution Emanuel Kant observed “Judicial punishment can
never be used merely as a means to promote some other good for the criminal himself or
civil society, instead, it must in all cases be imposed on him only on the ground that he has
committed a crime; for a human being can never be manipulated merely as a means to the
purposes of someone else.” According to him, punishment is an end in itself therefore,
retribution is natural justification because society thinks that a bad man should inevitably
be punished and good ought to be rewarded.20

Retribution connects the offender to correct values; it sends the message to the wrongdoer
that what he did was wrong. Retribution should, therefore, not be confused with revenge.
It would be unfair to the victims if there is no retribution against the wrongdoers. It would
also be unfair to the law abiding citizens if the offenders get undeserved benefit through
their criminal acts.21

In modern society the idea of revenge in the punishment is rejected and the modern concept
is hate the sin and not the sinner. The various studies have established that the social
structure and the functioning of the social system is more responsible for a crime than an
individual. Modern criminology states that it is important to protect the interest of a
criminal in the same way as one has to defend the social interest. A criminal after his release

19
Supra note 16 at 26
20
Supra note 8 at 296
21
supra note 16 at 130

16
 should not become an enemy of society. But still there are certain expectations where the
retributive punishment can be considered necessary. 22
In India the Supreme Court has applied retributive theory of punishment while awarding
capital punishment by postulating the doctrine of ‘rare of the rarest’ to justify retribution,
vengeance or revenge on the person causing injury. Indeed the death penalty serves the two
purposes- it satisfies the instinct of retribution as well as works as a deterrent to like minded
criminals.23

2 Utilitarian Theory
The utilitarians view punishment as a means to achieve certain ends with the aid of criminal
law. Punishment should not exceed more than what is absolutely necessary to produce the
desired effect on the criminal and society. Punishment must serve as an instrument for
reducing crimes either by deterring the offender and others from doing similar acts in future
or it should prevent the commission of offences by incapacitating the offenders.
Reformation of the offender through punishment is also sought to be achieved, though the
efficiency of the punitive approach in the reformation of the offender is extremely doubtful.
Utilitarians accept punishment only for achieving “good consequences” but there may be
disagreement as to the nature of the “good consequences”. Three issues to be considered
in a given situation are as to whether the punishment would be –
(i) useless,
(ii) needless,
(iii) involving more evil than what it purports to solve.24

Deterrent Theory – One of the rationalisation to justify punitive reaction is that

punishment acts as a deterrent to the offender punished and also to others in the community.
The founder of this theory, Jeremy Bentham, based his theory of determine on the principle
of hedonism which said that a man would be deterred from committing a crime if the
punishment applied was swift, certain and severe. This theory considers punishment as an

22
Id at 132
23
Jagmohan Singh v. State of U.P., AIR 1973 SC 947
24
Supra note 16 at 133

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 evil, but is necessary to maintain order in the society.25Deterrence is undoubtedly one of
the effective policies which almost every penal system accepts despite the fact that it
invariably fails in its practical application as criminal law is concerned with preventing of
the individual from committing a crime. It fails in the case of hardened criminal who return
to prison soon after their release.

Preventive Theory – Preventive philosophy of punishment is based on the proposition

“not to avenge crime but to prevent it”. It presupposes that need for punishment of crime
arises simply out of social necessities. In punishing a criminal, the community protects
itself against anti-social acts which endanger social order in general or person or property
of its members. In England, utilitarians like Bentham, Stuart Mill and Austin supported
preventive theory because of its humanising influence on criminal law. They asserted that
it is the certainty of law and not its severity, which has a real effect on offenders. 26 The
supporters of preventive philosophy recognise imprisonment as the best mode of
punishment because it serves as an effective deterrent and a useful preventive measure.

In India Criminal Procedure Code and Indian Penal Code contains provisions concerning
punishment of attempts and conspiracies to commit crime. Thus detention, deportation,
imprisonment, exile, disablement and death penalty are the chief modes of preventive
punishment by which the wrong doer is removed from the scene. Preventive theory has
great utility for India in the prevailing law and order situation against extremists, terrorists,
secessionists, drug peddlers, smugglers, underworld armed gangs of mafias, criminals and
communalists etc. Who cannot be controlled or reformed by soft and curative methods.

In D.K.Basu v. State of West Bengal27, the Hon’ble Supreme Court declared that “there can
be no gainsaying that freedom of individual must yield to the security of the state. The right
of preventive detention of the individuals in the interests of security of the state in various
situations has been upheld by the Court. The action of the state, however, must be right,
just and fair. The state terrorism would only provide legitimacy to terrorism. That the

25
Supra note 8 at 295
26
Supra note 8at 298
27
AIR 1997 SC 3669

18
 terrorist has violated human rights innocent citizens may render him liable for punishment
but it cannot justify the violation of his human rights except in a manner permitted by law.”

Reformative Theory – With the passage of time developments brought about change in
the criminological thinking. Individualised treatment became the cardinal principle for
reformation of offenders. The reformative view of penology suggests that punishment is
only justiciable if it looks to the future and not to the past. Modern penologists suggest their
faith in reformative justice but they strongly feel that it should not be stretched so far.
Salmond observed though general substitution of reformation for deterrence may seem
disastrous, it is necessary in certain cases especially for abnormals and degenerates who
have diminished responsibility. In reformative treatment, surveillance and close
supervision is itself punitive though it involves no physical pain or suffering. 28

Gandhiji said that “hate the sin and not the sinner” which should be a guide in the
administration of criminal justice. According to Gandhiji the outlook of the jail staff should
be that of physicians in a hospital. They were to help them to regain their mental health and
not harass them in any way. In this context eminent judge V.R Krishna Iyer’s remarks that
“If every saint has past, every sinner has a future and it is the role of the law to remind both
of this (indeed) the technology of rehabilitation is the key to the manifestation of the
divinity of man.

In Sec 361 of Cr.P.C., the sentencing judge has to record special reasons, where an accused
person could have been dealt with under Sec 360 Cr.P.C. or Probation of Offenders Act or
Juvenile Justice Act or any other law for the time being in force for the treatment, training
or rehabilitation of youthful offenders.

The main defect of reformative theory is that it can be applicable to minor offences. It
cannot be applicable to serious crimes like murder or with regard to habitual criminals.
Moreover it is criticized as contrary to the principles of natural justice. The aggrieved may
not be rewarded but the guilty person must not go unpunished.

31
Supra note 8 at 38

19
Recent developments in the field of penology marked the rationalisation of punishment and
emphasis on clinical method of treatment of offenders and their rehabilitation. The utility and
futility of punishment is to be judged on the basis of utilitarian principles propounded by Jeremy
Bentham. The Hon’ble Supreme Court in Santa Singh v. State of Punjab, 29observed that “modern
penology regards crime and criminal as equally material when sentence has to be awarded. It turns
the focus not only on the gravity or nature of crime, but also on the criminal and seeks to
personalise the punishment so that the reformist component is also much operative as the deterrent
element.”

In Jamal v State of Uttar Pradesh,30 the Honourable Supreme Court observed that in operating the
sentencing system, law should adopt the corrective machinery or deterrence based on factual
matrix. The sentencing process should be stern where it should be, and tempered with mercy where
it so warrants to be. The facts and given circumstances in each case, the nature of crime, the manner
in which it was planned and committed, the motive for commission of crime, the conduct of the
accused, the nature of weapons used and all other attending circumstances are relevant facts, which
would enter into the area of consideration while awarding the sentence.”

It is now well settled that the ultimate object of punishment is prevention of crime and protection
of society. It is also widely agreed that no theory of punishment can achieve the real purpose of
punishment singly. As rightly pointed out by Caldwell, “punishment is an art which involves the
balancing of retribution, deterrence and reformation in terms not only of the Court and the offender
but also of the values in which it takes place and in the balancing of these purposes of punishments,
first one and then the other, receives emphasis as the accompanying conditions change”. 31

There are number of punishments and out of all forms of punishments “death sentence” or “Capital
punishment” is perhaps the most debated subject among the modern penologists. Arguments in
favour of capital punishment says that it deters the people and other criminals, a social need, saves
the state money, moral war, legal demand, given in the rarest of the rare cases. Arguments in favour
of abolition of capital punishment are that it cannot deter the criminals and people, not a social

29
(1976) 4 SCC 190
30
(2010) 12 SCC 532
31
Supra note 8 at 38

20
need nor save the public money, inhumane and barbaric, germs of crime are within the society,
against reformative theory.

The Hon’ble Supreme Court in Maru Ram’s case observed that “the rehabilitation and reformation
of the criminal has the main component of the penal policy as social defence.32Though the Supreme
Court is advocating time and again the need for reformation of the criminal and his restoration to
the society, the Court also stressed the need to employ the punishment as deterrent and a public
denunciation. This stand is evident from the verdict of the Supreme Court in Bachan Singh’s case
while retaining the death penalty though limiting it to “rarest of rare cases” and laid down four
principles:

(1) The extreme penalty of death need not be inflicted except in grievous cases of extreme
culpability.
(2) Before opting of the death sentence the circumstances of the offenders are also required to
be taken into consideration along with the circumstances of the crime.
(3) “Life imprisonment is the rule and death sentence is exception”.
(4) A balance of aggravating and mitigating circumstances has to be accorded full weightage
and a just balance has to be struck between the aggravating and the mitigating
circumstances before the option is exercised.

These principles and validity of death sentence were affirmed by the Hon’ble Supreme Court in
series of cases. The Hon’ble Supreme Court held in Machhi Singh v. State of Punjab33answered
the test to determine the “rarest of rare” case in which death sentence can be inflicted and in number
of other cases.

The Second optional Protocol to the International Covenant on Civil and Political Rights aiming
at the abolition of the death penalty. But India is not signatory to this optional protocol. Changes
in procedure and evidence were introduced from time to time creating jurisprudence different in
many ways from the conventional approach to crime and criminal justice. Special laws have been
enacted to define new crimes outside the Indian Penal Code.

32
AIR 1980 SC 2147
33
(1983) 3 SCC 470

21
Despite the fact that traditional methods of deterrent and retributive justice have fallen into disuse
and they are now substituted by modern reformatory measures, it must be stated that excessive
reformation is likely to defeat the very object of penology. A balanced penal programme justifying
deterrence when it is absolutely necessary and reformation as a general mode of treatment of
offenders would perhaps be the best policy to achieve the desired ends of the criminal justice
administration.34

Justice Gulab Gupta of High Court of Madhya Pradesh pointed out, “if reformation in fact benefits
the society, the conscience of social justice would be satisfied but if the reformation accrues to the
benefit of the individual alone, social justice would remain suffocated. Let this not happen even
unwillingly or unknowingly.”35

The efforts that are being made in recent years to switch over to e-courts with e-governance for e-
justice would certainly go a long way in restoring the confidence of people in criminal justice
system which lost its credibility being too expensive and dilatory. The development of ADR
mechanism Lok Adalats, plea bargaining and setting up of the fast track courts are some of the
measures which certainly help strengthening the cause of criminal justice system in India.

CRITICISM

Some people think that punishment as a whole is unhelpful and even harmful to the people that it
is used against. Detractors argue that punishment is simply wrong, of the same design as "two
wrongs make a right". Critics argue that punishment is simply revenge. Professor Deirdre Golash,
author of the book, The Case against Punishment: Retribution, Crime Prevention, and the Law,
states in her book that,

We ought not to impose such harm on anyone unless we have a very good reason for doing so.
This remark may seem trivially true, but the history of humankind is littered with examples of the
deliberate infliction of harm by well-intentioned persons in the vain pursuit of ends which that
harm did not further, or in the successful pursuit of questionable ends. These benefactors of

34
Supra note 8 at 39
35
Ibid

22
humanity sacrificed their fellows to appease mythical gods and tortured them to save their souls
from a mythical hell, broke and bound the feet of children to promote their eventual
marriageability, beat slow schoolchildren to promote learning and respect for teachers, subjected
the sick to leeches to rid them of excess blood, and put suspects to the rack and the thumbscrew in
the service of truth. They schooled themselves to feel no pity—to renounce human compassion in
the service of a higher end. The deliberate doing of harm in the mistaken belief that it promotes
some greater good is the essence of tragedy. We would do well to ask whether the goods we seek
in harming offenders are worthwhile, and whether the means we choose will indeed secure them.36

Golash also makes statements about imprisonment,

Imprisonment means, at minimum, the loss of liberty and autonomy, as well as many material
comforts, personal security, and access to heterosexual relations. These deprivations, according to
Gresham Sykes (who first identified them) “together dealt 'a profound hurt' that went to 'the very
foundations of the prisoner's being.

But these are only the minimum harms, suffered by the least vulnerable inmates in the best-run
prisons. Most prisons are run badly, and in some, conditions are more squalid than in the worst of
slums. In the District of Columbia jail, for example, inmates must wash their clothes and sheets in
cell toilets because the laundry machines are broken. Vermin and insects infest the building, in
which air vents are clogged with decades' accumulation of dust and grime. But even inmates in
prisons where conditions are sanitary must still face the numbing boredom and emptiness of prison
life—a vast desert of wasted days in which little in the way of meaningful activity is possible. 37

Destructiveness to thinking and betterment

There are critics of punishment who argue that punishment aimed at intentional actions forces
people to suppress their ability to act on intent. Advocates of this viewpoint argue that such
suppression of intention causes the harmful behaviors to remain, making punishment
counterproductive. These people suggest that the ability to make intentional choices should instead
be treasured as a source of possibilities of betterment, citing that complex cognition would have
been an evolutionarily useless waste of energy if it led to justifications of fixed actions and no

36
https://www.questia.com/read/117883311/the-case-against-punishment-retribution-crime-prevention
37
Ibid

23
change as simple inability to understand arguments would have been the most thrifty protection
from being misled by them if arguments were for social manipulation, and reject condemnation of
people who intentionally did bad things.[42] Punishment can be effective in stopping undesirable
employee behaviors such as tardiness, absenteeism or substandard work performance. However,
punishment does not necessarily cause an employee to demonstrate a desirable behavior. 38

Crime and punishment and Rehabilitation: a Smarter Approach

Although criminal justice agencies in Australia have, in recent years, adopted an increasingly “get
tough” approach, responses to crime that rely on punishment alone have failed to make our
communities safer. Instead, they have produced an expanding prison system. This has the potential
to do more harm than good and places considerable strain on government budgets.

Increasing prison sentences does little to deter criminal behaviour. Longer sentences are associated
with higher rates of re-offending. When prisoners return to their communities, as the vast majority
inevitably do, the problems multiply.

Exposing the limitations of punishment

In this context, it becomes important to think carefully about public policy responses that aim to
punish and deter offenders. Psychologists have been studying punishment under well-controlled
laboratory conditions with both animals and humans for nearly 100 years. Its effectiveness in
promoting short-term behavioural change, or even in suppressing negative behaviour, depends on
rather specific conditions being in place.

For punishment to work it has to be predictable. Punishment also has to be applied at maximum
intensity to work, or else tolerance and temporary effects result. Yet applying very intense levels
of punishment for many offences goes against our sense of justice and fairness.

38
Milbourn Jr, Gene (November 1996). "Punishment in the workplace creates undesirable side effects".

24
The threat of punishment, no matter how severe, will not deter anyone who believes they can get
away with it. It will also not deter those who are too overcome by emotion or disordered thinking to
care about the consequences of their behaviour.

Punishment also has to be immediate. Delayed punishment provides opportunities for other
behaviours to be reinforced. In reality, it often takes months – if not years – for someone to be
apprehended, appear in court and be sentenced.

Working towards more effective rehabilitation

Many of the conditions required for punishment to be effective will not exist in any justice system.
It follows that policies and programmes that focus on rehabilitating offenders will have a greater
chance of success in preventing crime and improving community safety.

The origins of offender rehabilitation in Australia can be traced back to the early penal colonies
and, in particular, to the work of Alexander Maconochie, a prison governor on Norfolk Island in
1840. Maconochie introduced the idea of indeterminate rather than fixed sentences, implemented
a system of rehabilitation in which good behaviour counted towards prisoners’ early release, and
advocated a system of aftercare and community resettlement.

Maconochie’s ideas built on those of the great social reformers of 18th-century Britain, notably
Quakers such as John Howard and Elizabeth Fry. They were among the first to try to change
prisons from what they called “institutions of deep despair and cruel punishment” to places that
were more humane and had the potential to reform prisoners’ lives.
These days, though, offender rehabilitation is often thought about in terms of psychological
treatment. We can chart the rise of current programmes according to the broad traditions
of psychodynamic psychotherapy, behaviour modification and behaviour therapy and, more
recently, the cognitive-behavioural and cognitive approaches that characterise contemporary
practice.

The earliest therapeutic work in the psychoanalytic tradition saw delinquent behaviour as the
product of a failure in psychological development. It was thought this could be addressed through

25
gaining insight into the causes of offending. A wide range of group and milieu therapies were
developed for use with offenders, including group counselling and psychodrama.

In the 1980s, more behavioural methods – such as token economies, contingency management
programmes and “time out” – replaced psychotherapy.

There are good grounds to develop standardised incentive models in Australia’s prisons.
Community-style therapeutic programmes for prisoners with substance use problems in Victoria,
NSW and the ACT represent substantial advances in practice.

These programmes take advantage of the significant therapeutic opportunities that arise by looking
closely at prisoners’ social functioning and day-to-day interactions. They actively encourage
offenders to assume responsibility not only for their own behaviour, but for that of others.

However, rehabilitation today is almost always associated with cognitive-behavioural therapy.

This targets a relatively narrow range of crime-producing (or “criminogenic”) needs, including
pro-criminal attitudes – those thoughts, values and sentiments that support criminal conduct.
Programmes also dedicate a lot of time to trying to change personality traits, such as low self-
control, hostility, pleasure- or thrill-seeking and lack of empathy.

Not everyone can be successfully treated. Substantial evidence now exists, though, to suggest that
this type of approach does produce socially significant reductions in re-offending.

Essential steps in making corrections policy work

The challenges lie in ensuring that the right programmes are delivered to the right people at the
right time.

First, it is important that low-risk offenders have minimal contact with higher-risk offenders.
Extended contact is only likely to increase their risk of recidivism. This has implications for
prisoner case management, prison design and for the courts.

26
Courts have the power to divert low-risk offenders from prison and thus minimise contact with
more entrenched offenders. Related to this is the need to develop effective systems of community-
based rehabilitation, leaving prisons for the most dangerous and highest-risk offenders.

Second, concerted efforts are required to develop innovative programmes for those who identify
with Aboriginal or Torres Strait Islander cultural backgrounds. They are grossly over- represented
across all levels of the criminal justice system.

Third, staff need to be properly selected, trained, supervised and resourced to deliver the highest-
quality rehabilitation services to the most complex and challenging people.

Finally, it is important to demonstrate that programmes actually make offenders better, not worse.
The types of evaluation that are needed to attribute positive change to programme completion are
complex, require large numbers of participants and cross-jurisdictional collaboration. A national
approach to programme evaluation is sorely needed.

This is not to suggest that criminal behaviour shouldn’t be punished – only that we should not rely
on punishment by itself to change behaviour. We need to create a true system of rehabilitation that
can enhance the corrective impact of punishment-based approaches.

It also doesn’t mean that punishment never works. It may work reasonably well with some people
– perhaps those who are future-oriented, have good self-monitoring and regulation skills, and who
can make the connection between their behaviour and negative consequences months later.

Unfortunately, many people in prison simply aren’t like this. The challenge, then, is two-fold: to
find ways to make punishment more effective and to tackle the causes of offending through high-
quality rehabilitation.

Correctional services often get little credit for their efforts. They are widely criticised when things
go wrong. However, their efforts to rehabilitate offenders are not only sensible, but also cost-
efficient and practical.

27
We need to support efforts to create a true system of rehabilitation. Such a system will be
comprehensive, coherent and internally consistent in applying evidence-based practice at all
levels.39

39
http://theconversation.com/crime-and-punishment-and-rehabilitation-a-smarter-approach-41960

28