Theories of Punishment in Contradiction with Gandhian Principles

Profile of the Author: Jahanvi Bhandari is a 3rd year Law Student pursuing B.B.A LLB from MMU, Mullana. The fields of social issues, environmental issues and constitutional topics hold her keen interest.

Introduction

When a crime is committed by a person against the society or an individual, the first basic instinct of the sufferer will be to seek vengeance from the person. If people seeking their own revenge will be the case, morality will be highly questionable. To maintain regulation and harmony in society, it is important that even giving punishments to criminals be in accordance with certain laws and theories. Government has several theories to support the use of punishment to maintain order in society.

Punishment

Punishment is the infliction of some kind of pain or loss upon a person for a misdeed. [1] In criminal Law punishment is allowed due to the wrongful intent involved in the crime. A punishment such as incarceration seeks to give any victim involved retribution against the offender, deter the criminal from future criminal acts, and hopefully rehabilitate the offender. [2]

The aim of the different theories of punishments is to transform the law-breakers into law-abiders. [3]

Five Theories of Punishment:

• Deterrent Theory
• Retributive Theory
• Preventive Theory
• Reformative Theory
• Expiatory Theory

Deterrent Theory-

The word Deter means to abstain from doing something. According to this theory, severe punishments are given to the offender so that he abstains from doing any offence in the near future and also it is used as an example for the rest of the society as to show the consequences of committing a crime. [4] This theory has proved to be effective though there are some cons as well.

Retributive Theory-

This theory is based on the saying “An eye for an eye, a tooth for a tooth.” This theory focuses on subjecting the criminal to the same kind of pain as he inflicts on others; to make the person realize the suffering other person went through. This theory aims at taking revenge rather than social welfare and transformation. [5] This theory has not been supported by intellectuals as it is brutal.

Preventive Theory-

This theory aims at preventing the crime rather than avenging it. [6] It believes in keeping the offender away from the society by giving him punishments like death penalty or life imprisonment etc. Thus one can 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. [7]

Reformative Theory-

This theory is based on the saying that nobody is a born criminal, criminals are also humans. This is the most accepted theory out of all. It aims at giving individual attention to criminals by educating and training them and believing that they can also be transformed into law-abiding citizens. This is the most recent and most humane of all theories.

Expiatory Theory-

Expiation means the act of expiating, repairing, amending, compensating and atoning. Under this theory, it is believed that if the offender repents his mistake, he can be forgiven. According to this theory, compensation is awarded to the victim from the wrong-doer. By crimes awarding compensation from the pocket of the wrong-doer, he is punished and is prevented from doing such offences in his remaining life. [8]

These theories are well according to the time but are also criticized.

Lord Denning appearing before the Royal Commission on “Capital punishment” expressed the following view:

“The punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizen for them. It is a mistake to consider the object of punishment as being deterrent or reformative or preventive and nothing else.”[9]

These theories contradict the Gandhian Principles very well.

Gandhiji once said, “An eye for an eye, will leave the whole world blind.” Gandhi truly believed in non- violence. Gandhi was disturbed by the silent and largely invisible but extensive violence daily committed by the state without a murmur of protest, namely the prisons. [10]

For Gandhi, there were only crimes, not criminals. To describe a man as a criminal was to imply that criminality was inherent in his nature and that he was nothing more than criminal. For Gandhi there was no real difference between crime and disease, for him it was a moral lapse, a disease, not the normal condition of the human soul. When he talked about jails though he said jails should be converted into reformation centres, he never advocated non-existence of jails in free India. These theories contradict his principles to some extent. [11]

Conclusion

Criminals are very much part of society and society has to reform them to become a better and sober citizen. The society also has to look from the point of view of the victim. If the victim realizes that the state is reluctant to punish the offender in the name of reform and correction, they may take law in their own hands, which will lead to anarchy. The Punishment should have proportionality and uniformity too.

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References

[1] https://www.britannica.com/topic/punishment

[2] https://definitions.uslegal.com/p/punishment/

[3] https://www.google.com/amp/s/www.lawnn.com/theories-punishment-kinds-punishment-criminal-law/amp/

[4] https://www.google.com/amp/s/www.lawnn.com/theories-punishment-kinds-punishment-criminal-law/amp/

[5] https://www.google.com/amp/s/www.lawnn.com/theories-punishment-kinds-punishment-criminal-law/amp/

[6] https://www.legalserviceindia.com/articles/pun_theo.htm

[7] https://www.legalserviceindia.com/articles/pun_theo.htm

[8] https://www.google.com/amp/s/indianlegalsolution.com/the-expiatory-theory-of-punishment/amp/

[9] Critical Analysis of Theories of Punishment, JSS Law College

[10] https://www.religiousleftlaw.com/2011/08/crime-punishment-a-gandhian-perspective.html

[11] https://www.religiousleftlaw.com/2011/08/crime-punishment-a-gandhian-perspective.html