Criminal Law I Project

On

Theory of Criminal Justice

Guided by: Presented by:

Mrs. Suman Dash Bhattamishra Shashank Khare

Assistant Professor 14/B.A./L.L.B./043

National Law University, Odisha

 TABLE OF CONTENTS

1. ACKNOWLEDGEMENT ....................................................................................................... 4

2. TABLE OF AUTHORITIES ............................................................................................................ 5

3. INTRODUCTION ......................................................................................................................... 7

4. RESEARCH METHODOLOGY ....................................................................................................... 8

4.1 SCOPE AND LIMITATION .......................................................................................................... 8

4.2 RESEARCH OBJECTIVES.......................................................................................................... 8

4.3 RESEARCH QUESTION.............................................................................................................. 8

4.4 HYPOTHESIS ........................................................................................................................... 8

4.5 METHOD ................................................................................................................................ 9

4.6 SOURCES ................................................................................................................................ 9

4.7 MODE OF CITATION ................................................................................................................ 9

5. CRIME AND JUSTICE: MEANING AND RELATIONSHIP ................................................................ 10

6. CRIMINAL JUSTICE AND PUNISHMENT..................................................................................... 12

6.1 SHOULD WE PUNISH? ............................................................................................................ 13

6.2 WHOM SHOULD WE PUNISH? ................................................................................................ 13

6.3 HOW SHOULD WE PUNISH? ................................................................................................... 14

6.4 HOW MUCH SHOULD WE PUNISH? ......................................................................................... 14

6.5 RESTORATIVE PUNISHMENT ................................................................................................. 14

7. CRIMINAL JUSTICE SYSTEM IN INDIA ................................................................................... 15

 7. 1 ADMINISTRATION OF CRIMINAL JUSTICE ............................................................................. 16

7.1.1 INVESTIGATION ............................................................................................................. 16

7.1.2 INQUIRY ........................................................................................................................ 16

7.1.3 TRIAL ............................................................................................................................ 17

8. THEORIES OF CRIMINAL JUSTICE ............................................................................................ 17

8.1 DETERRENT THEORY: ........................................................................................................... 18

8.2 RETRIBUTIVE THEORY ......................................................................................................... 19

8.3 REFORMATIVE THEORY........................................................................................................ 20

8.4 PREVENTIVE THEORY ........................................................................................................... 21

8.5PROPORTIONALITY THEORY.................................................................................................. 21

9. CONCLUSION .......................................................................................................................... 23
ACKNOWLEDGEMENT

I take this opportunity to extend my sincere thanks and gratitude to my teacher and mentor Mrs.
Suman Dash Bhattamishra for her esteemed guidance, encouragement and support without which
I would not have been able to complete this project. I would like to thank her for giving me this
golden opportunity to learn more and gain an in depth knowledge about this topic.

Last but not the least; I would like to extend my gratitude to my parents and friends for their
continuous support, love and encouragement. It helped me move closer to achieving our goal. It
would not have been possible to complete this project without them
 1. TABLE OF AUTHORITIES

CASES

HARCHAND SINGH V. STATE OF HARYANA, 1975 (1) S.C.J. 102.................................................... 14

STATUTES

§ 2(G) CODE OF CRIMINAL PROCEDURE, 1973. .............................................................................. 13

§2(H), CODE OF CRIMINAL PROCEDURE, 1973 ............................................................................... 13

BOOKS

ANDENAES, J. (1974) PUNISHMENT AND DETERRENCE .................................................................. 16

BAVA, N. (2000) HUMAN RIGHTS AND CRIMINAL JUSTICE ADMINISTRATION IN INDIA. ..........12, 14

BEGUM, S., CHAIRPERSON, / AND AWAN, A.B. (2013) ‘PLATO’S CONCEPT OF JUSTICE AND

CURRENT POLITICAL SCENARIO IN PAKISTAN’, INTERNATIONAL JOURNAL OF HUMANITIES AND

SOCIAL SCIENCE, 3(11). ............................................................................................................... 7

BLACK LAW DICTIONARY 14TH EDITION. ......................................................................................... 7

BRAITHWAITE, J. (2002) RESTORATIVE JUSTICE & RESPONSIVE REGULATION. NEW YORK:

OXFORD UNIVERSITY PRESS. ................................................................................................11, 15

CRIME AND CRIMINAL JUSTICE SYSTEM IN INDIA, MIR MEHRAJ-UD-DIN, 1990, 1ST EDITION ......... 8

DAVIES, M., CROALL, H. AND TYRER, J. (2009) CRIMINAL JUSTICE. 4TH EDN. NEW YORK:
PEARSON LONGMAN ...............................................................................................................8, 11

GANDHI, V.H. (2010) JUDICIAL APPROACH IN CRIMINAL JUSTICE SYSTEM: AN EXPERIENCE OF

INDIA. INDIA: READWORTHY PUBLICATIONS PVT. ..................................................................7, 10

KEVIN C. KENNEDY, A CRITICAL APPRAISAL OF CRIMINAL DETERRENCE THEORY, 88 DICK. L.

REV. 1 (1983-1984) ................................................................................................................9, 15
MARTIN, JACQUELINE (2005). THE ENGLISH LEGAL SYSTEM (4TH ED.), LONDON: HODDER
ARNOLD P. 174 .......................................................................................................................... 17

NEW DIRECTIONS IN RESTORATIVE JUSTICE: ISSUES, PRACTICE AND EVALUATION BY ELIZABETH

ELLIOTT AND ROBERT M. GORDON BY WILLIAM PUBLISHING IN DEVON, UK PAGE 89 ............ 11

RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE. PP. 313-352 .......................................... 8

SALMOND, JURISPRUDENCE, FITZGERALD, P.J.(ED.) (12TH ED.), (DELHI: UNIVERSAL LAW

PUBLISHING CO PVT, 2008). P.95............................................................................................... 17

SCHELLING, T.C. (1990) THE STRATEGY OF CONFLICT. CAMBRIDGE, MA: HARVARD UNIVERSITY
PRESS…………………………………………………………………………………………...1
5

BENTHAM, J. (1843) PRINCIPLES OF PENAL LAW .......................................................................... 15

SEDGWICK, J. (1980) DETERRING CRIMINALS: POLICY MAKING AND THE AMERICAN POLITICAL
TRADITION. ................................................................................................................................ 16

SMARTT, U. (2008) LAW FOR CRIMINOLOGISTS: A PRACTICAL GUIDE. LOS ANGELES: SAGE
PUBLICATIONS ........................................................................................................................... 10

UNNITHAN, P.N. (ED.) (2013) CRIME AND JUSTICE IN INDIA. INDIA: SAGE INDIA .....................7, 10

WILLIAM TALLACK, REPARATION TO THE INJURED AND THE RIGHTS OF THE VICTIMS OF CRIME TO
COMPENSATION (LONDON, 1900), PP. 11–12; SCHAFER,RESTITUTION TO VICTIMS OF CRIME, PP.
7–8............................................................................................................................................. 19

ARTICLES

BECKER, G.S. (1974) CHAPTER TITLE: CRIME AND PUNISHMENT: AN ECONOMIC APPROACH.

AVAILABLE AT: HTTP://WWW.NBER.ORG/CHAPTERS/C3625.PDF (ACCESSED: 9 APRIL 2016). .... 10

 2. INTRODUCTION

Criminal justice is the system of practices and institutions of governments directed at upholding
social control, deterring and mitigating crime, or sanctioning those who violate laws
with criminal penalties and rehabilitation efforts.

Criminal Justice and Punishment are two very similar concepts that exist in the society for
keeping a control on crime. Various methods of crime control are used by several states.

In this project we will be discussing the relationship between criminal justice and punishment
along with the criminal justice system of India. In order to formulate various criminal laws it is
necessary to understand the principle behind different preventive actions, which can be
understood by looking into different theories of criminal justice.

Studying criminal justice is tacitly, and sometimes explicitly, relegated to the narrow role of
evaluative and descriptive scholarship. This project examines the complexity of the object of
study when theorizing criminal justice and the efficacy of organizing criminal justice theory
using multiple “theoretical orientations.” The conclusion stresses the essentiality of criminal
justice theory.
 3. RESEARCH METHODOLOGY

4.1 SCOPE AND LIMITATION

This project covers meaning and scope of Criminal Justice System with specific reference to
India. It also emphasizes the relationship between punishment and criminal justice system, and
how they are inter-rerated to one another. This project covers five theories of criminal justice and
their drawbacks

This project is not covering the Criminal Justice System of any country other than India. Also the
discussed theories are limited and there exists some other theories as well.

4.2 RESEARCH OBJECTIVES

Following are the research objectives of this project:

 To understand the meaning of crime and criminal justice system

 To understand the relationship between punishment and criminal justice system
 To understand the reason for existence of various punitive laws by means of theories of
criminal justice.

4.3 RESEARCH QUESTION

 Whether there exists a correlation between punishment and criminal justice system?
 Whether the theories of criminal justice system have any drawbacks?

4.4 HYPOTHESIS

Hypothesis 1, it is believed that there exists a relationship between punishment and criminal
justice system. Both are inter-related. As the theories of criminal justice system helps in
understand various punitive implications by the authorities.
Hypothesis 2, it is believed that various theories of criminal justice have certain drawbacks due
to which they fail to provide the requisite result in certain conditions.

4.5 METHOD

The current research is doctrine in nature.

4.6 SOURCES

For this project primary reliance is on the secondary sources like articles journals and books.

Other than some primary sources like cases and statutes have also been referred.

4.7 MODE OF CITATION

For this project the mode of citation used is Bluebook 19th edition.
 4. CRIME AND JUSTICE: MEANING AND RELATIONSHIP

Crime and Justice are very much related to one another, in many ways. Crime is an ever existing
phenomenon of the society i.e. it is impossible to completely do away with crime. But crime can
be minimized; Justice plays an important role in keeping a check on crime in the society.
Criminal Justice exists due to the existence of crime in the society.

Crime is defined as an act committed or omitted, in violation of a public law, either forbidding or
commanding it; a breach or violation of some public right or duty due to a whole community,
considered as a community.1 Criminal justice is said to be study of agencies of social contract
that handle criminal offenders.2 The concept of crime involves the idea of a public as opposed to
a private wrong with the consequent intervention between the criminal and injured party by an
agency representing the community as whole. Crime is thus the international commission of an
act deemed socially harmful; or dangerous and the reason for making any given act a crime is the
public injury that would result from its frequent participation. The society therefore takes steps
for its preventation by prescribing specific punishments for each crime.

Crime is phenomenon in human societies, according to Sociologist- Pris and Durkheim,

“Criminality proceeds from the very nature of humanity itself, it is not transcendent but
immanent.” Durkheim emphasized the point further when he says “Crime is normal in human
societies because the fundamental condition of social organization logically imply it”.” 3 A
society exempt from crime would require a standardization of the moral concepts of all
individuals, which is neither possible nor desirable”.

The term Justice is as old as the man. Justice is a term used in a variety of perspectives. It is
sometimes taken in the meanings of fairness and reasonableness. It could be a parameter which
tells us about the validity of a law. Proper fulfillment of the duties and rights is also considered
as justice. As far as the concept of justice is concerned, it is not easy to reach at a single and
unified end. Justice is a concept which is speculative, not conclusive.4 In this project as we are

1
Black Law Dictionary 14th Edition.
2
Unnithan, P.N. (ed.) (2013) Crime and justice in India. India: SAGE India
3
Gandhi, V.H. (2010) Judicial approach in criminal justice system: An experience of India. India: Readworthy
Publications Pvt.
4
Begum, S., Chairperson, / and Awan, A.B. (2013) ‘Plato’s concept of justice and current political scenario in
Pakistan’, International Journal of Humanities and Social Science, 3(11).
dealing with criminal justice theory, our primary concern is criminal justice. As Davies, Croall
and Tyrer5 observe, ―the criminal law does not enforce itself. Rather people working in
particular agencies enforce it: that is, the police, prosecutors, magistrates and judges, and
probation and prison personnel. Criminal justice is the system of practices and institutions
of governments directed at upholding social control, deterring and mitigating crime, or
sanctioning those who violate laws with criminal penalties and rehabilitation efforts.

Typically, legal theorists and philosophers consider four distinct kinds of justice: corrective
justice, distributive justice, procedural justice, and retributive justice.6 Criminal law falls under
retributive justice, a theory of justice that considers proportionate punishment a morally
acceptable response to crime.

The criminal justice system consists of three main parts: (1) Legislative (create laws); (2)
adjudication (courts); and (3) corrections (jails, prisons, probation and parole)7. In the criminal
justice system, these distinct agencies operate together both under the rule of law and as the
principal means of maintaining the rule of law within society. Every county has different law
formulating the criminal justice system; like in India we have laws like Indian Penal Code, 1860,
Code of Criminal Procedure, 1973 etc. are some of the laws related to the criminal justice
system.

Criminal Justice System defines what constitutes a crime and the punishment for the act of
commission of that crime. Crime includes various acts which are considered as offences by
different laws that formulate the criminal justice system. Criminal justice refers to established
systems for dealing with crime, specifically detection of crime, detaining of criminals, and
criminal prosecution and punishment. Crime on the other hand is only an action which violates
certain provisions of law. Both are indispensible elements of the society, as it is impossible to
completely eliminate crime and the existence of a society depends upon the functioning of the
criminal justice system.

5
Davies, M., Croall, H. and Tyrer, J. (2009) Criminal justice. 4th edn. New York: Pearson Longman
6
Richard A. Posner, The Problems of Jurisprudence. pp. 313-352
7
Crime and Criminal Justice System in India, Mir Mehraj-Ud-Din, 1990, 1st Edition
 5. CRIMINAL JUSTICE AND PUNISHMENT

Although the word "crime" is used in the title to minimize terminological innovations, the
analysis is intended to be sufficiently general to cover all violations, not just felonies — like
murder, robbery, and assault, which receive so much newspaper coverage—but also tax evasion,
the so-called white-collar crimes, and traffic and other violations.8

Punishment is the authoritative imposition of an undesirable or unpleasant outcome upon a group

or individual, in response to a particular action or behavior that is deemed unacceptable or
threatening to some norm9 Punishment is an important component of the criminal justice system,
as it is thorough this that one can control crime by the means of punitive sanctions. The
unpleasant imposition may include a fine, penalty, or confinement, or be the removal or denial of
something pleasant or desirable. The individual may be a person, or even an animal.

Justifications for punishment include retribution, deterrence, rehabilitation, and incapacitation.

Out of the four justifications, only retribution is part of the definition of punishment and none of
the other justifications is a guaranteed outcome, aside from obvious exceptions such as an
executed man being incapacitated with regard to further crimes.10

When we talk about punishment as a part of criminal justice system, several questions come into
our mind regarding the existence of punishment. Questions like;

 Should we punish?
 Why should we punish?
 Whom should we punish?
 How should we punish?
 How much should we punish?

These are some questions which every criminologist has considered to be important when
punishment as a part of criminal justice system is taken into consideration.

8
Becker, G.S. (1974) Chapter title: Crime and punishment: An economic approach. Available at:
http://www.nber.org/chapters/c3625.pdf (Accessed: 9 April 2016).
9
Id.
10
Kevin C. Kennedy, A Critical Appraisal of Criminal Deterrence Theory, 88 Dick. L. Rev. 1 (1983-1984)
Different theories of criminal justice can usually be distinguished in how they answer questions
about punishment. The definition above deliberately excludes penalties unrelated to wrongdoing
or lawbreaking, even when imposed by a legal system. It also distinguishes or at least restricts
this definition from the one used in operant conditioning.

6.1 SHOULD WE PUNISH?

The answer to this question is important as a negative answer makes further questions about
punishment irrelevant. In fact, if we answer no, then the theory of punishment does not even
belong in the theory of criminal justice.11

Most theories answer yes, that there are at least some criminals or criminal acts that should be
punished. However, this question should not be so easily dismissed as there are theories which
do answer no. Consider, for example, Pacifism. Also, certain versions of restorative justice might
optimistically make the claim that punishment is unnecessary.

6.2 WHOM SHOULD WE PUNISH?

We should punish criminals. Unfortunately, the answer is not that simple. Should we punish only
lawbreakers, or other wrongdoers? Should we punish all criminals? Often, the answers to these
questions are interrelated with the reasons for punishment.12

For example, if the reason for punishment is rehabilitation, then we should not punish criminals
who show genuine remorse. In practice, this is difficult to determine.

The question of whether only lawbreakers can be punished is connected to the validity of
retroactive laws.13 Whether wrongdoers can and should be punished under retroactive laws was
particularly important around the end of World War II. Many Nazi war criminals were tried
under laws which were not in place at the time they committed their so-called crimes. Although
their actions were wrong, their punishment brings up important issues. Punishment under
retroactive laws cannot possibly accomplish deterrence.

11
Smartt, U. (2008) Law for Criminologists: A practical guide. Los Angeles: SAGE Publications.
12
Unnithan, P.N. (ed.) (2013) Crime and justice in India. India: SAGE India
13
Gandhi, V.H. (2010) Judicial approach in criminal justice system: An experience of India. India: Readworthy
Publications Pvt.
6.3 HOW SHOULD WE PUNISH?

Different methods of punishment can be evaluated based on effectiveness, cost efficiency, and
on moral grounds.

There is a principle in certain versions of retributive theory that can be stated as "an eye for an
eye". This principle argues for punishment in kind with the harm that was caused by the
wrongdoer.14

Cruel and unusual punishment is outlawed in many legal systems, presumably on moral grounds.

6.4 HOW MUCH SHOULD WE PUNISH?

Deterrence theory argues that the amount of punishment should be the minimum required to
achieve the desired amount of deterrence. Most versions of retributive justice argue that the
amount of punishment should be proportional to the amount of harm caused. Reform theory
argues that the amount of punishment should be enough to cause reform in the offender.

However, some theories would argue that the amount of punishment is not important at all. For
example, if the purpose of punishment is incapacitation, the fact that a jail sentence is
undesirable to the offender is irrelevant.15

6.5 RESTORATIVE PUNISHMENT

The relationship of punishment to restorative justice is uneasy. Many restorative justice

promoters are ‘against punishment’, seeing little or no connection between it and restorative
justice. Others see a complementary relationship in which restoration depends, in part, on
punishment. Understanding the relationship of punishment to restorative justice (the ‘punishment
debate’) is hampered by varied and imprecise use of key terms such as punitive, retribution,
restoration, and punishment itself.16

14
Davies, M., Croall, H. and Tyrer, J. (2009) Criminal justice. 4th edn. New York: Pearson Longman.
15
New Directions in Restorative Justice: Issues, Practice and Evaluation by Elizabeth Elliott and Robert M. Gordon
by William Publishing in Devon, UK page 89
16
Braithwaite, J. (2002) Restorative Justice & Responsive Regulation. New York: Oxford University Press.
Only retribution is part of the definition of punishment and none of the other justifications for
punishment is a guaranteed outcome, aside from obvious exceptions such as an executed man
being incapacitated with regard to further crimes.

Key principles of Restorative Justice include a view of crime as a conflict between individuals
rather than between offender and the State. Closely related to this is a belief that the
responsibility for governance of security, crime and disorder is to be shared among all members
of the community. Restorative justice is viewed as a humanitarian approach that brings to the
foreground ambitions of forgiveness, healing, reparation and reintegration17

6. CRIMINAL JUSTICE SYSTEM IN INDIA

The essential object of criminal law is to protect society against criminals and law-breakers. For
this purpose the law holds out threats of punishments to prospective lawbreakers as well as
attempts to make the actual offenders suffer the prescribed punishments for their crimes.
Therefore, criminal law, in its wider sense, consists of both the substantive criminal law and the
procedural (or adjective) criminal law.

Therefore the two main statues which deals with administration of criminal cases in our country
are criminal procedure code i.e. Crpc and Indian penal code i.e. Ipc being procedural and
substantive respectively.

The germs of criminal jurisprudence came into existence in India from the time of Manu. In the
category of crimes Manu has recognized assault, theft, robbery, false evidence, slander, criminal
breach of trust, cheating, adultery and rape.Later with the advent of western jurisprudence and
passing of various charters and commissions and the advent of British rule the Indian society
succumbed or we can probably say adjusted or adapted and aligned itself to the adversarial
system of justice dispensation which prevails even today but with a lot of changes which have
been time and again being made to it to suit to the needs of the changing times.

17
Bava, N. (2000) Human Rights And Criminal Justice Administration In India.
7. 1 ADMINISTRATION OF CRIMINAL JUSTICE

The procedure of administration of criminal justice in our country is divided into three stages
namely investigation, inquiry and trial. The Criminal procedure code 1973 provides for the
procedure to be followed in investigation, inquiry and trial, for every offence under the Indian
Penal Code or under any other law.

Therefore for a dispute to be resolved the said case has to go through the three stages i.e. inquiry
investigation and trial and after this process is completed the judgement of the court is passed by
the judge who decides the case and its outcome.

7.1.1 Investigation

Investigation is a preliminary stage conducted by the police and usually starts after the recording
of a First Information Report (FIR) in the police station.18 It primarily consists of ascertaining
facts and circumstances of the case, includes all the efforts of a police officer for collection of
evidence: proceeding to the spot; ascertaining facts and circumstances; discovery and arrest of
the suspected offender; collection of evidence relating to the commission of offence, which may
consist of the examination of various persons including the accused19 and taking of their
statements in writing and the search of places or seizure of things considered necessary for the
investigation and to be produced at the trial; formation of opinion as to whether on the basis of
the material collected there is a case to place the accused before a magistrate for trial and if so,
taking the necessary steps for filing the charges.

7.1.2 Inquiry

“Inquiry” according to the Code includes every inquiry other than a trial conducted under this
Code, by a Magistrate or court. It relates to proceedings of Magistrates prior to trial.20

18
§2(h), Code of Criminal Procedure, 1973
19
Id.
20
§ 2(g) Code of Criminal Procedure, 1973.
Section 159 of the Code empowers a Magistrate on receipt of a police report under Section 157,
Cr.P.C. to hold a preliminary inquiry in order to ascertain whether an offence has been
committed and, if so, whether any persons should be put upon their trial.

7.1.3 Trial

Trial is the judicial adjudication of a person’s guilt or innocence. Under the Crpc, criminal trials have
been categorized into three divisions having different procedures, called warrant, summons and summary
trials.
The term “trial” has not been defined in the Code. It is the examination and determination of a
cause by a judicial tribunal which has jurisdiction over it. It is a judicial proceeding which ends
in conviction or acquittal but not discharge.21

7. THEORIES OF CRIMINAL JUSTICE

The theory of criminal justice is the branch of philosophy of law that deals with criminal justice
and in particular punishment. The theory of criminal justice has deep connections to other areas
of philosophy, such as political philosophy and ethics, as well as to criminal justice in practice.
The oldest known codified law is the Code of Ur-Nammu, written in the Sumerian language
circa 2100 BC-2050 BC.22 The preface directly credits the laws to king Ur-Nammu of Ur. In
different parts of the world, law could be established by philosophers or religion. In the modern
world, laws are typically created and enforced by governments. These codified laws may coexist
with or contradict other forms of social control, such as religious proscriptions, professional rules
and ethics, or the cultural mores and customs of a society.

Several philosophers and criminologists have given different theories of criminal justice.
Criminal justice is a process, involving a series of steps beginning with a criminal investigation
and ending with the release of a convicted offender from correctional supervision. Rules and
decision making are at the center of this process. These theories help us to understand the
existence and explanation of various criminal justice systems in the world.

21
Harchand Singh v. State of Haryana, 1975 (1) S.C.J. 102
22
Bava, N. (2000) Human Rights And Criminal Justice Administration In India.
Various theories of criminal justice are:

1. Deterrent Theory
2. Retributive Theory
3. Reformative Theory
4. Expiation Theory
5. Preventive Theory
6. Proportionality Theory

8.1 DETERRENT THEORY:

Proponents of deterrence believe that people choose to obey or violate the law after calculating
the gains and consequences of their actions. According to deterrence theory in criminology, we
are affected by both the costs and rewards that are consequent to our behavior. In other words,
we tend to behave based on the expectation that we will receive some type of reward for doing it
while hoping to avoid some type of punishment for not doing it or doing something else.23

There are two basic types of deterrence—general and specific. There are two mechanisms
through which the criminal justice system can reduce crime by apprehending and punishing
offenders. One is by convincing arrested offenders that crime is a very costly behavior, which
should serve to reduce any overall benefits to them of committing crimes in the future. This is
the mechanism of specific deterrence.24 Another mechanism through which the apprehension and
punishment of criminal offenders can reduce crime is by convincing would-be offenders not to
commit crime because they run the risk of being apprehended and punished. Preventing these
persons from committing crime by punishing actual offenders is the mechanism of general
deterrence.25

Jeremy Bentham and Cesare Beccaria are responsible for some of the earliest formulations of
criminal deterrence theory.26 Bentham was convinced that crime rose from the conscious,

23
Paternoster, R. and Bachman, R. (2015) Perceptual deterrence theory. Available at:
http://www.oxfordhandbooks.com/view/10.1093/oxfordhb/9780199747238.001.0001/oxfordhb-9780199747238-e-
33 (Accessed: 9 April 2016).
24
Kevin C. Kennedy, A Critical Appraisal of Criminal Deterrence Theory, 88 Dick. L. Rev. 1 (1983-1984)
25
Id.
26
Schelling, T.C. (1990) The strategy of conflict. Cambridge, MA: Harvard University Press; Bentham, J. (1843)
Principles of Penal Law.
rational considerations of the individua1.27 Accordingly, a person contemplating the commission
of a crime would undertake a cost-benefit analysis and would execute the criminal plan only if
potential benefits sufficiently outweighed expected costs. Under this thesis, the task of law
enforcement personnel and lawmakers was clear: the risks, or costs, for a potential criminal had
to be so great that he would have far more to lose than to gain from committing a crime. Today,
criminal deterrence theorists continue to rely on this model, called the economic model of the
rational actor, to explain and predict criminal behavior.28

8.2 RETRIBUTIVE THEORY

Retributive justice is a theory of justice that considers punishment, if proportionate, to be the best
response to crime. When an offender breaks the law, justice requires that they forfeit something
in return. In contrast to revenge, this type of retribution is only directed at wrongs, has inherent
limits, is not personal, involves no pleasure at the suffering of others, and employs procedural
standards.

The concept of retributive justice has been used in a variety of ways, but it is best understood as
that form of justice committed to the following three principles: (1) that those who commit
certain kinds of wrongful acts, paradigmatically serious crimes, morally deserve to suffer a
proportionate punishment; (2) that it is intrinsically morally good—good without reference to
any other goods that might arise—if some legitimate punisher gives them the punishment they
deserve; and (3) that it is morally impermissible intentionally to punish the innocent or to inflict
disproportionately large punishments on wrongdoers

Many more jurisdictions following the retributive philosophy, especially in the United States,
follow a set tariff, where judges impose a penalty for a crime within the range set by the tariff.
As a result, some argue that judges do not have enough discretion to allow for mitigating factors,
leading to unjust decisions under certain circumstances. In the case of fines, the financial
position of an offender is not taken into account, leading to situations in which an unemployed
individual and a millionaire could be forced to pay the same fine, creating an unjust situation; the

27
Andenaes, J. (1974) Punishment and Deterrence.
28
Sedgwick, J. (1980) Deterring Criminals: Policy Making and The American Political Tradition.
fine would be too punitive for the unemployed offender or not large enough to punish the
millionaire29

8.3 REFORMATIVE THEORY

According to this theory, the object of criminal justice should be the reform of the criminal,
through the method of individualization. It is based on the humanistic principle that even if an
offender commits a crime, he does not cease to be a human being. He may have committed a
crime under circumstances which might never occur again. Therefore an effort should be made
to reform him during the period of his incarceration. The object of punishment should be to bring
about the moral reform of the offender.

According to view of Salmond30, if criminals are to be sent to prison to be transformed into good
citizens by physical, intellectual and moral training, prisons must be turned into comfortable
dwelling places.

The increasing understanding of the social and psychological causes of crime has led to growing
emphasis on reformation rather than deterrence. Less frequent use of imprisonment,
abandonment of short sentences and attempt to use prison as training rather than a pure
punishment, and greater employment of probation, parole and suspended sentences are evidence
of reformative trend.31

But like other theories this theory also has some drawbacks. Reformative theory expects better
infrastructure and facilities in prison, proper co-ordination between different discipline and
persistent effort on their part to mould criminal. It requires huge investments which poor country
cannot afford it. This theory neglects potential offenders and persons who have committed crime
but not within the arms of law. Further, it overlooks the claims of victims of crimes.

29
Martin, Jacqueline (2005). The English Legal System (4th ed.), London: Hodder Arnold p. 174
30
Salmond, Jurisprudence, Fitzgerald, P.J.(Ed.) (12th Ed.), (Delhi: Universal Law Publishing Co Pvt, 2008). p.95
31
Id.
8.4 PREVENTIVE THEORY

According to this theory the aim of criminal justice is to prevent or deter others from committing
similar offences. A criminal is punished to be made an example of to prevent others from
committing the same crime.

This theory justifies capital punishment as an extreme form of punishment because of its
determent effect. A man has taken the life of another man. So he ought to be deprived of his life.
Unlike the former theories, this theory aims to prevent the crime rather than avenging it. Looking
at punishments from a more humane perspective it rests on the fact that the need of a punishment
for a crime arises out of mere social needs i.e. while sending the criminals to the prisons the
society is in turn trying to prevent the offender from doing any other crime and thus protecting
the society from any anti-social elements.

In order to explain this in greater details let us look at an illustration, an owner of the land puts
an notice that ‘trespassers’ would be prosecuted. He does not want an actual trespasser and to
have the trouble and expense of setting the law in motion against him. He hopes that the threat
would render any such action unnecessary; his aim is not to punish trespass but to prevent it. But
if trespass still takes place he undertakes prosecution. Thus the instrument which he devised
originally consists of a general warning and not any particular convictions.

Thus one an easily say that preventive theory though aiming at preventing the crime to happen in
the future but it still has some aspects which are questioned by the penologists as it contains in its
techniques which are quite harsh in nature. The major problem with these types of theories is that
they make the criminal more violent rather than changing him to a better individual

8.5PROPORTIONALITY THEORY

Proportionality is a general principle in law which covers several special (although related)
concepts. The concept of proportionality is used as a criterion of fairness and justice in statutory
interpretation processes, especially in constitutional law, as a logical method intended to assist in
discerning the correct balance between the restriction imposed by a corrective measure and the
severity of the nature of the prohibited act. Within criminal law, it is used to convey the idea that
the punishment of an offender should fit the crime.
The proportionality rule tells us how much punishment a plaintiff may exact from a convicted
wrongdoer, and no more; it imposes the maximum limit on punishment that may be inflicted
before the punisher himself becomes a criminal aggressor.32

Sanctioning rationales differ from one another largely in the emphasis they give the principle of
proportionality-that is, the requirement that sanctions be proportionate in their severity to the
seriousness of offenses.

32
William Tallack, Reparation to the Injured and the Rights of the Victims of Crime to Compensation (London,
1900), pp. 11–12; Schafer,Restitution to Victims of Crime, pp. 7–8.
 8. CONCLUSION

The researcher at the end of this project finds criminal justice system as a method of social
control. He would like to summarize his understanding about the theories of punishment:

There is an attempt to portray criminal justice system as a method of inflicting of unpleasant

circumstances over the offender.

Though certain theories like the reformative and preventive rely upon humanitarian modes of
criminal justice, but these have a weakness against the hardcore criminals.

Punishments such as the retributive and deterrence though the use of fear as an instrument to
curb the occurrence of crime helps in controlling the criminals up to a certain extent. As these
employ the idea of revenge and vengeance these are much harsher than others.

The researcher would like to add his own views on this very controversial topic. We all know
that truth is stranger than fiction and so is the practice of these theories. Though prisons are
meant to be the place where the criminals would be corrected or for that case deterred from
committing a wrong in the future, but the present day witnesses the prisons to have become
redundant in their objective and becoming sites of breeding for hardcore criminals. This is a fact
that the penologists must look into. Furthermore the techniques applied in executing the
punishment are not fool proof, for e.g. the criminals are able to carry on their illegal activities
even during serving the period of sentence. Though in theory all of the punishments discussed
above may seem perfect if used collectively, but this all becomes a mere joke when tried to
implicate in the practical sense.