Punishment is a means of social control. It is given to the offenders with the aim to check them from committing crimes again. It deters not only the actual offenders but also others from doing the same kind of acts in future. On the one hand, it is some solace to the victim or to his relatives if the offender is punished and on the other hand it serves a social purpose to prevent the people from indulging in criminal acts. So that the punishment may be a reasonable means to check the crime, three things are essential for it. The first is the speedy and inescapable detection and prosecution, the second is a fair chance of "a fresh start" after the punishment and the third is that the State which claims the right to punish must uphold the superior values to be reasonably expected from the prisoner for being acknowledged (1). The concept of punishment is that of inflicting some sort of pain on the offender for his violation of law. The idea of inflicting pain or suffering in awarding punishment has been modified in view of the modern reformatory methods introduced recently in dealing with the criminals. For instance, probation, parole or pardon is treated as substitute for the punishment. Even in the prison, the basic idea is not to inflict pain or suffering but to teach the convict the methods and techniques including technical training, to make the prisoner a law abiding citizen. All punishments take place within a society's ordinary legal and penal systems. In the past, several reasons have been given for the justification of punishment. One of these reasons is retributive. Another reason, historically associated with utilitarianism, is that punishment serve to deter others from offending i.e., deterrence. A third reason is partly that punishment or a practice of treatment, secures the fewer offences will be committed in the future, but not through deterrence. This could be as reformative aspect, recommending the moral regeneration of individuals as an end itself and also a means to the prevention of crime.
II. Cross-conflict in reformative and deterrent objectives
Modern society considers various objectives in order to control crime and it considers imprisonment a means to attain the twin aims, i.e., reform and treatment of the criminals so that they will commit no crime after their release. Society also seeks protection from criminals and for this purpose prison isolates criminals from the community for a certain time. All these objectives- reformation, retribution and deterrence, within the prison result in cross conflict. This conflict between reformative, deterrent and retributive measures has been a controversial issue from the point of correctional administration as well as treatment of the offender. Some criminologists have even gone to the extent of suggesting that introducing new reformative techniques in the correctional field should ultimately eliminate prisons. Special mention may be made of the Probation, fine, collective labour, etc. With the advent of social science to the arena of punishment, however, a new clearly defined school of thought has arisen whose insistence on the reform of the convict as the central theme of criminal theme of criminal sanctions excludes or subordinates all other ends of punishment. Certainly the ideal of complete reform has not been reached, although there is wide agreement on the value of this goal of punishment.
III. The choice between Punishment and Reformation
The choice between punishment and reformation is a difficult one and it requires a judicious application of mind by the person dealing with such offender. This decision must be guided by the ultimate aim of providing justice to the victim, society and the offender. Justice is supreme and justice ought to be beneficial for the society so that the society is placed in a better-off situation. Law courts exist for the society and ought to rise up to the occasion to do the needful in the matter, and as such ought to act in a manner so as to sub serve the basic requirement of the society. The greatest virtue of the law is its flexibility and its adaptability; it must change from time to time so that it answers the cry of the people, the need of the hour and the order of the day.
One school of thought propagates that the function of the law court is that of a social reformer and as such in its endeavour to act as such, the question of deterring punishment would not arise since the society would otherwise be further prone to such violent acts or activities by reason of the fact that with the advancement of the age the mental frame of boys of tender age also go on changing and in the event of any arrogance being developed or a sense of revenge creeping into the society, the society would perish to the detriment of its people. The other school, however, has expressly recorded and emphatically that unless the severest of the severe punishments are inflicted on an offender, the society would perish.
The other school professes that since one has taken the life of another that does not mean that his life shall have to be taken, but during the trial if it transpires the method and manner or the nature of the activities which have resulted in the elimination of a human being from this world, there should not be any laxity on the part of the law courts, otherwise the society would be engulfed in a false sense of security of life in the event of their being the most heinous crime of the earth. An inadequate sentence would fail to produce a deterrent effect on the society at large. Punishments are awarded not because of the fact that it has to be an eye for an eye or a tooth for a tooth, rather having its due impact on the society; while undue harshness is not required but inadequate punishment may lead to sufferance of the community at large (2).
In T.K. Gopal v State of Karnataka (3) the Supreme Court observed: "In the matter of punishment for offence committed by a person, there are many approaches to the problem. On the commission of the crime, three types of reactions may generate. The traditional reaction of universal nature is known as punitive approach. The other approach is the therapeutic approach; the third is the preventive approach. Under the punitive approach, the rationalization of punishment is based retributive and utilitarian theories. Deterrent theory which also part of the punitive approach proceeds on the basis that the punishment should act as a deterrent not only to the offender but also to others in the community. The therapeutic approach aims at curing the criminal tendencies, which were the product of a diseased psychology. The therapeutic approach has since been treated as an effective method of punishment which not only satisfies the requirements of law that a criminal should be punished and the punishment prescribed must be meted out to him, but also reforms the criminal through various processes, the most fundamental of which is that inspite of having committed a crime, may be a heinous crime, he should be treated as a human being entitled to al the basic human rights, human dignity and human sympathy."
Similarly, in State of M.P v G.Singh (4) the Supreme Court observed: "The law regulates the social interests, arbitrates conflicting claims and demands security of persons and property of the people and is an essential function of the state. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of the law, which must be achieved by imposing appropriate sentence. Therefore, law as a corner stone of the edifice of "order" should meet the challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. The sentencing process should be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for the commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the arena of consideration. The undue sympathy to impose inadequate sentence would do more harm to the justice system. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. The imposition of sentence without considering its effects on the social order may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest, cannot be lost sight of and per se require exemplary treatment."
IV. THE DETERMINATIVE FACTORS
The following factors are relevant for determining whether a deterrent or reformative approach should be adopted:
(1) the facts and circumstances of each case,
(2) the nature of the crime,
(3) the manner in which it was planned or committed,
(4) the motive for the commission of the crime,
(5) the conduct of the accused,
(6) the nature of the weapons used,
(7) prior criminal record of the offender,
(8) age of the accused,
(9) home life of the accused,
(10) emotional and mental condition of the accused,
(11) the prospects for rehabilitation,
(12) the possibility of return to normal life in the community,
(13) the possibility of treatment and training of the offender,
(14) the social impact of the crime, and
(15) all other attending circumstances.
These factors are, however, illustrative and not exhaustive in nature. Thus, there is no fixed formula or guidelines which can be used to determine whether the offender should be punished by sentencing him to imprisonment or he should be given a chance to reform himself and to start a fresh life. Each case has to be decided on its own facts and circumstances. It is submitted that unless the court is undoubtedly of the opinion that the offender is a threat and menace to the society, he should be given a chance to reform himself and to contribute positively towards the betterment and development of the society at large. Further, whenever the court is divided on the issue of punishment or reformation, the benefit of such a situation should be extended to the offender and he should be given a chance to correct and reform himself.
© Praveen Dalal. All rights reserved with the author.
* Consultant and Advocate, Delhi High Court, India.
Contact at:
pd37@rediffmail.com/ perry4law@yahoo.com (1) Max Green hut, Penal Reform, A Comparative study, P.3.
(2) Jai Kumar v State of M.P, (1999) 5SCC 1.
(3) AIR 2000 SC 1669.
(4) AIR 2003 SC 3191.