What is a Crime?
Crime, as we known, has been a dynamic concept. There is no straight jacketed definition to it. However, many philosophers, sociologists have given their understanding of the word ‘crime’, which enables us to understand what does criminology entails of. According to Nigel Walker, as he lists down the ‘purposes of criminal law’, one can conclude that:
A) the protection of human person,
B) prevention of unnatural act,
C) protection of property,
D) protection of social institutions,
E) defence of the state, and
F) ensuring rational legal theory of behaviour seems to be of the prime importance in the current scenario.
The Deviance behind ‘Crime’:
As it is said, ‘No one is born criminal’, some sociologists identify ‘crime’ as ‘social phenomenon’, and that the criminal law protects the ‘social interests’. We can say that the individuals who commit the crime deviate and commit those acts that are prohibited by norms and expectations of the society. This brings me to the concept of ‘Crime and Deviance’. Marshall B. Clinard (1974), an American sociologist, stated that the term ‘deviance’ talks about the behaviour that is disapproved by the society to an extent where it is intolerable.
However, we must also understand, what is deviant/intolerable today may be the new normal in the future. At the same time, what may seem deviant to one particular part/community of the society, it may be ordinary to the other. Thus, we can say that alike crime, deviance is a dynamic concept too. From a larger perspective, it is the deviance which is the influencing factor of crime. It becomes crucial to understand the importance and factors of this deviance when sentencing punishment.
Sentencing, Ethics and Morality:
The stage of punishment is the final one in criminal jurisprudence system. A person is considered innocent until proven guilty. We know that ingratitude, insensitivity to the sufferings of others is not a crime. Even the drafters of IPC observed that “We cannot admit that a Penal Code is by any means to be considered as a body of ethics.”
Alike deviance, morality and ethics are subjective and may vary from person to person; “whose morality should form the benchmark for criminalisation?”. According to Section 40 of IPC, “an offence denotes a thing made punishable by the code”. One must note that there is no uniform sentencing policy in the country, the sentences reflect the discretion of the judges.
Punishments under the Indian Penal Code, 1860:
According to Section 53 of Indian Penal Code, 1860;
The punishments to which offenders are liable are:
B) Imprisonment for Life;
C) Imprisonment, which is of two descriptions, namely: 1) Rigorous, that is, with hard labour; 2) Simple;
D) Forfeiture of Property;
Section 53 indicates that it has limited the discretion of judges to above mentioned options. This has also obstructed the path to adopt newer ways of penalising an offender, as it does not acquire different approaches for reformation of the criminals.
However, one must note that Section 53 is applicable only for offences prescribed under IPC and not under any other law. In order to understand the theories of punishment, we must understand factors and attributes of the punishment which are as follows;
The factors that influence the ‘sentence’:
A) Nature of the offence
B) Modus Operandi of the offence
C) History/Background of the accused
D) Mitigating and Aggravating Factors
We can infer that there is no formula to describe a ‘just and appropriate’ punishment, rather it relies on the discretionary judgment which balances the mitigating and aggravating factors as well the facts and circumstances of the crime/offence committed.
The attributes of ‘punishment’:
A) Consequence of an offence(s);
B) Sentenced against the offender/accused;
C) Sentenced by an authority who made such act an offence.
Four major theories of punishment:
A) Deterrent Theory
B) Retributive Theory
C) Preventive Theory
D) Reformative Theory
The objective of this theory is operated by fear. Jeremy Bentham in context of this theory went to an extent of stating ‘death sentence’ as a sanction. “Punishment (sanction) is before all things deterrent, and the chief end of the law of crime is to make the evildoer an example and warning to all that are like minded with him.” Deterrence acts on the actual or potential motives of the offender.
The idea of this theory is to inflict the pain of the crime committed on the offender. In the theory, the State takes the responsibility to inflict the pain in order to avoid personal vendetta. The theory focuses on providing support to the victim or/and victim’s family instead of social welfare and security.
The avoidance of newer ways to penalize an offender has lead to the criticism of this aspect of the IPC formulated by Lord Macaulay stating that it is based on the deliberation of retribution and is not oriented towards the reformation of the criminals.
The objective of this theory is to keep the offender away from the society. The aim is to prevent the crime rather than reaching the stage of avenging it. One can perceive the present day prisons as the product of this theory. Capital Punishment can also be regarded as an aspect of this theory as it intends to separate the offender from the society. It also lays down certain restrictions on the offender to prevent him from committing crime in the future.
In Narotam Singh V. State of Punjab, the court stated that “The reformative approach to punishment should be the object of the criminal law, in order to promote rehabilitation without offending communal conscience and to secure social justice.”
Justice VR Krishna Iyer’s pronouncements regrading the sentencing policy in India reflects the dictum that ‘every saint has a past and every sinner a future’. In Rajendra Prasad V. State of Uttar Pradesh, he stated what factors influence the sentencing in offences where he talked about the different approaches of judges from counting the number of fatal wounds to taking in consideration the sublimated class complex in order to sentence a criminal for the crime committed.
However, it is also argued that in light of the rights of the prisoners, the rights of the victims must not be forgotten. Also, rehabilitation isn’t looked upon as an established culture in our society; it tends to incline more towards retribution. This theory works well upon juveniles and individuals who committed crime for the first time.
Which theory is the best?
Each theory has its own pros and cons to narrate. However, the courts are now forced to consider the nature of sentencing- if it is deterrent, retributive, preventive, or reformative. The courts are expected and also trusted with the imposition of sentence that reflects the conscience of the society in a way that it responds to “the society’s cry for justice against the criminal”.
As stated above, capital punishment is a part of two theories, i.e. deterrent and preventive as a possible sanction. It is the harshest of punishments provided in the IPC. It involves judicial killing of the accused as a form of punishment. Criminal Law enters the ambit only when the ethics and morality fail. Death sentence is given in the ‘rarest of rare case’. Few perceive it as a required deterrent measure, few perceive it as a court-mandated murder.
One must note that there is not a single offence in IPC which states the mandatory sentence of death. The statutory provisions do not provide a set of guidelines as to when a judges should impose capital punishment, it completely relies on the discretion of the judges in court. The discretionary power is well guided by IPC, CrPC, and the Indian Evidence Act.
If a court comes on the conclusion that capital punishment is the suitable sentence, then the court has to give ‘special reasons’ explaining the basis of the said conclusion under the provisions of section 354(3) of Code of Criminal Procedure, 1973 (CrPC).
According to Section 366 of CrPC, no death sentence can be executed unless it is confirmed by the High Court. Also, a death sentence can be commuted to life imprisonment as an alternative. While sentencing, the court tries to analyse if the mitigating factors are enough to balance out the aggravating factors.
After analyzing the different theories of punishments, one can conclude that sentencing requires greater deliberation, emphasis on the nature of sentencing, the importance of discretionary powers, the prominence of social constructed behaviour and a better understanding of law and sociology to comprehend how a society works and the changes that lead to development of criminal law.
KI Vibhute, PSA Pillai’s Criminal Law 4, (LexisNexis, Gurugram, 14th edn., 2019).
Id. at 6
Michael Haralambos, Martin Holborn, et.al, Sociology Themes and Perspectives 347, (Collins, London, 8th edn., 2019).
 Supra note 1 at 306.
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 Supra Note 1 at 12.
 Supra Note 1 at 306.
 The Indian Penal Code, 1860 (Act 45 of 1860), s. 53
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“Critical Analysis of Theories of Punishment”, available at: http://jsslawcollege.in/wp-content/uploads/2013/05/CRITICAL-ANALYSIS-OF-THEORIES-OF-PUNISHMENT1.pdf (last visited on 17 September 2020).
“Theories of Punishment”, available at: https://www.lawnn.com/theories-punishment-kinds-punishment-criminal-law/ (last visited on 17 September 2020).
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 Supra Note 14.
 AIR 1978 SC 1542
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 Supra Note 1 at 307.
 Supra Note 14.
 Supra Note 1 at 307.
 Supra Note 1 at 316.
 Supra Note 1 at 08.
 Supra Note 1 at 316.
 Supra Note 1 at 318.