Overview: Multiple theory approach of penology in India
Nov. 08, 2024 • Medha Joshi, Dharmashastra National Law University
Student's Pen
“Punishment governs all mankind; punishment alone preserves them; punishment wakes while their guards are sleep; the wise consider the punishment (danda) as the perfection of justice.” -Manu
Introduction
The penological pursuit of a nation gives face to the nation's policy and action towards reducing crime by imparting punishment as a sine qua non consequence of committing a crime. Crime is a prevalent practice in society which mandates for punishment as a necessary measure to cure. The penological approach towards a criminal act is the resultant of economical and societal changes that have evolved over the time.
Penology which deals with ideology behind punishment. It gives justification with respect to existent criminal justice system based on corrective measures that are adopted in that time and space in the nation. Since, no ideal criminal justice system prevails and so does is the case with penological manifestations, thus an approach that caters towards maximization of social interest is seen along with the interests of the accused.
Contemporary Facets of Punishment
Punishment is the chief sanction that is applied under criminal law. Punishment is a tool to effectively implement corrective measures. It can be manifested in different realities that is portrayed in the versions of theories of punishment. Since, crime is a notion attached with the society and grows with the development in the society and thereby, the need to curb it is strongly manifested in the realization of it in corrective measures a country adopt.
Punishment in the contemporaneous outlook is justified in its existence by employing Multiple Approach Theory which is a blend of deterrent, retributive, preventive and reformative theories majorly. The justification of multiple approach theory draws its validation from the primary ideology that runs through each theory but couldn't do the needful to cater towards a more fulfilled justice.
- Deterrent Theory- Deterrent theory owes its genesis to the literal connotation of its expression which prioritizes to deter the criminals by imposing a sanction instilling fear. It argues for strict sanctions that may be imposed in the coming future by not following the law. For ex- In England, when even for pick-pocketing death penalty was awarded in open execution mode, the instances of pick pocketing increased incessantly negating the very notion of deterrence. It is based on the concept of pain and pleasure that was proposed by Bentham in his Hedonistic Theory. The theory promulgates that the nature of punishment should be such that equates to the pleasure the offender has achieved by commission of such crime.
- Retributive Theory- Retribution which is the forerunner and highly criticized for its approach, even Mahatma Gandhi criticized it in congruence to the factum that an eye for an eye would make the whole world blind. The undercurrent for this very theory negates the reasonableness that should be there while determination of sentence coupling it with the analysis of the crime so committed. For ex- giving death penalty for murder is acceptable provided that reasons in totality support the crime
- Preventive Theory- It is based mainly on the precept that 'prevention is better than cure'. It focuses on crime prevention by already catering the necessary implications and sanctions so that vigilantly the crime could be prevented. The theory expounds that certain preventive sanctions be adopted beforehand to stop the commission of crime. It does not cater to satisfying the victim but taking certain steps prior so as to minimize the reaction.
- Reformative Theory- It is based and influenced on human rights angle and believes that the offender can be reformed, and is based on the undercurrent of the therapeutic approach towards the treatment of the crime. It proscribes for reformation that should be adopted where the offender or the criminal should be treated as a patient which has to be treated in the institution that is prison/ jail. India's current penal vision is based on reformation which seeks for rehabilitation and reintegration of the prisoner into the society.
- Multiple Approach theory- It advocates that the punishment that is proscribed to the offender must be a blend of all the approaches or theories, depending upon the nature of case that requires it to be so present. Abovementioned theories were being criticized for not being able to solely handle the justification of punishment as one or the other way they failed. In order to bring a median approach to cater to the penal system, mixed approach was being followed. The theory that was generated and recognized came to be a blend or mixture of all these that was being employed based on the liberal and rigid lines as the circumstances and the nature of the offence existed.
Justification of Punishment
Punishment system in India is currently modelled on the lines of Multiple approach theory. Multiple Approach Theory is the blend of all these theories which were criticized for not being able to resolve the penological pursuits and nor could further create enough deterrence in the society. The theory approach is characterized by being inclusive of various facets of socio-economic nature that might influence the criminal tendencies and their direct correlation to the penological justifications. The Court has accepted and laid down that a multiple faceted approach needs to be incorporated
STATE OF MADHYA PRADESH V. SURENDRA SINGH [AIR 2015 SC 398]
The court held that it is the obligation of the court to award proper sentence taking into consideration the nature of the offence and the manner in which the offence was executed or committed. Further it held that the courts while sentencing must consider all relevant facts and circumstances keeping on account the question of sentence and proceed to impose a sentence in proportion to the gravity of the offence. It must be sought that the court keep in view the rights of the victim of the crime along with the societal interests when considering the allocation of an appropriate punishment.
Bachan Singh V. State of Punjab [(1982)3SCC24]
It was held by the court that not a single theory can be adopted as the sole basis for awarding the punishment.
Sevaka Perumal v. State of Tamil Nadu [1991 AIR 1463]
In this the court emphasized its stance that based upon the nature of the offence that is being committed the gravity of punishment should be awarded.
Dr. Jacob George v. State of Kerala [1994 SCC (3) 430]
It was held that every approach of punishing the offender must be used independently depending upon the case and there must be punishment that aims to be deterrent, reformative, preventive, retributive & compensatory.
Conclusion
The ideology behind punishing an offender depends basically on the model of penological approach that is being followed and which must conform to the socio-economic needs of the society keeping in mind the gravity of the offence that one has committed. The employment of punishment needs to be based on the merits of the case and the circumstances of the case along with the gravity the offence is being committed. Punishment manifestly must stand as a deterrent along with it being able to cater to the interests of the accused wheresoever possible. The main aim of punishment is the infliction of pain for any wrongful act or omission that is being done.