Manu and Chanakya maintained that punishment is the basis of the state. Where there is no punishment, thieves and dacoits rule supreme there. In his well known book “Arthashastra”, Acharya Chanakya explains that if the king awards heavier punishment than justified, people rise in revolt against him and if the king is more lenient than wanted, he is despised by the people and people do not bother about him but if the king awards punishment according to the criminal law to impart justice, he is respected and revered by the people.
So law breakers are convicted, tried and punished in the state. If this is not done, the strong will exploit the weak and people will follow the maxim, “might is right”. Peace, law and order are maintained in the state only because of punishment.
In the absence of punishment, there will be chaos, confusion and disorder in the state and the weak will be exploited and victimized by the strong. Process of punishment is essential for the smooth running of society.
Following are the theories of punishment:
1. Retributive Theory:
Blood for blood is the basis of this theory. Now this right of taking revenge has been taken back by the state. In ancient times, if somebody was murdered, his relatives used to find out the murderer and kill him and thus took revenge on him. The feeling of revenge was nourished by the people from generation to generation. The relatives of the murdered persons thought it their right to take revenge and avenge his murder. The maxim blood for blood was popular in the ancient time.
“Eye for eye and tooth for tooth” was a very popular maxim in those days. Such maxims are still popular in some of the tribes living in border areas between Afghanistan and Pakistan. Blood for blood is the basis of this theory.
This theory of punishment is very cruel and inhuman. It does not seem to be fit for human beings. It is fit only for uncivilized people or for animals. These days no individual enjoys the right to avenge the murder of his relative. The state conducts the trial and permits the relative to put forward their arguments and imparts justice by punishing the criminal.
By this process of holding a trial and then punishing the criminal, the state attempts to appease the desire of revenge lurking in the heart of the relatives. If the individual is permitted to take revenue, this doctrine wills bad him to barbarism. Anarchy and chaos will prevail in the state. This is the reason why the state has taken this right back from the individual.
2. Preventive and Deterrent Theory:
The supporters of this theory maintain that state should give such type of punishment as will prevent crimes and teach a lesson to other criminals. Keeping this idea in view in olden times, hands and feet of the thieves and decoits were severed and they were made disabled so as not to repeat those crimes.
According to this theory, the state should not take revenge but create so much terror in the mind of the criminal that others also start shunning sue ghastly and despicable crimes. We well remember the works of a judge who uttered the following sentence, while awarding punishment to the criminal”, I am giving punishment to you not because you stole the sheep but because of the fact that people should not steal sheep in future”. This sentence makes it very clear that this theory aims at giving heavy punishment in the form of a warning to others.
3. Reformative Theory:
The supports of Reformative Theory maintain that crime is a kind of disease and the criminal should be treated well so that he may be able to recover from this disease. They maintain that just as a disease is diagnosed before the actual treatment, so crime should be diagnosed and then Proper treatment should be given to the criminal.
Many writers on this subject are of the opinion that a person commits a crime only because he was not taught moral Lessons in his childhood, or he is extremely poor, he does not have square meals or lives or had to live in the polluted social environment or had been living in the company of bad person like thieves, dacoits and gamblers and drunkards or is suffering from some mental disease. The supporters of Reformative theory opine that the government should adopt measures to remove such bad conditions and thus prevent crime.
4. Modern Theory of Punishment:
Modern Theory of Punishment is a combination of all the three theories discussed above. Retributive Theory is applied in the civil courts. In other words, the monetary loss of the sufferer is compensated and the criminal has to compensate for the loss.
Preventive and Deterrent Theory is applied to the old and habitual criminals so that they feel harassed and terrified enough not to repeat the crimes. If the old and habitual criminals are not given severe punishment, law and order cannot be maintained in the state and there will be a rapid increase in the number of criminals.
Therefore, it is wise to punish such criminals severely. By so doing the sufferers are also appeased and the other criminals are warned. Reformative Theory is applied only to the new criminals and juvenile delinquents.
These days education is given to criminals and they are taught the lessons of morality in jails. Not only this they are taught various crafts. Criminal’s sick of mental disease are given due mental treatment. In addition to this, it is also necessary that the state should give punishment according to the degree of crime. If it happens to be a gravest crime, severest punishment should be given, otherwise in case of ordinary crimes mild punishment should be awarded.
There should be separate jails for juvenile delinquents and more comforts should be given to them. Justice should not be delayed and the conditions of jails should be improved. Dark cells should be demolished in order to keep the prisoners in good health.
The state should run dispensaries and reformative schools. While giving punishment to the criminal, his age, personal record and his social and economic conditions should be kept in mind.
In addition to this, the judge should keep it in his mind very well, what effect the punishment, which is to be awarded to him, will leave on the dynasty of the criminal and on the law and order situation in the state. Provision for the Borstal Jail should be made for the juvenile delinquents. The aim of these jails is not to punish but to educate the delinquents.
Locke maintained that punishment should have certain aims:
They are as follows:
(a) The process of punishment should aim at the social good. Severest punishment should be given for the gravest crime and light punishment for a light crime;
(b) The injured persons should be treated well;
(c) Punishment should aim at preventing the criminal from repeating the crime;
(d) Punishment should prove a sort of warning to others.
Green regards man as an ethical being who seeks good life, as a member of a Punishment is the only means to enable the individual to achieve this end. The deterrent punishment, if it is not unnecessarily harsh, can lead to this effect indirectly. It can shock the criminal into realizing the anti-social character of his the importance of the rights of others.
An offender may be reformed not only by awakening his consciousness but also by making him fear the coercive power of the state. In the opinion of Kant, punishment should aim at justice. According to Bentham, the aim of punishment is to maintain peace, law and order.
Is the State empowered to give punishment?
The state is quite empowered to give punishment because the state is sovereign. The state frames laws in order to maintain peace, law and order in the state. The state punishes law-breakers. If the state fails to punish the law-breakers, there will be no law and order and no peace in society.
Evils and crimes will be given impetus and thieves, dacoits, robbers and bandits will rule supreme. Being afraid of punishment, thieves, robbers, bandits and dacoits hesitate to commit crimes. In the absence of punishment, the big fish will swallow the small fish and the weak will be exploited by the strong. Only punishment ensures the security of individual liberty.