SYMBIOSIS LAW SCHOOL, PUNE
CRIMINAL LAW PRACTICE
CLASS ASSIGNMENT
CRITICAL ANALYSIS ON THE INDIAN CRIMINAL SYSTEM
SUBMITTED BY
BANDANA SAIKIA
PRN: 19010125405
DIV-E, BA LLB 3rd YEAR
BATCH: 2019-2024
Which theory best suits the Indian criminal system. Elaborate with case laws and
Illustrations.
Ans- Personal safety, particularly security of life, liberty and property is of utmost
importance to any individual. A state is expected to have an efficient system of penal laws to
maintain law and order in the land so that its subjects can lead a peaceful life with no fear of
injury to their lives. According to Jeremy Bentham punishment is evil in the form of remedy
which operates by fear. Punishment is the sanction imposed on a person for the infringement
of the rules of the society. Punishment is primarily used as a method of protecting society by
reducing the occurrence of criminal behaviour. There have been various theories of
punishment prevalent in various ages. However, four of the most important theories are
Retribution, Deterrence, Preventive and Reformation Theory.
Retribution Theory: The concept of retribution as an object of punishment implies a
relationship between severity of punishment and degree of guilt. In primitive society
punishment was mainly retributive. The person wronged was slowed to have revenge
against the wrong doer. Retributive punishment gratifies the instinct for revenge or
retaliation which exists not merely in the individual wronged but also in society at
large. Retributive is based on the Roman doctrine of Poena sous tenere debet actors
et non alios means punishment belongs to the guilty, and not others. In the
retributivist theory of punishment, the punishment is seen as a form of ‘payback’ for
the crimes one has committed. Mostly retributive justice seeks to punish a person for
a crime in a way that is compensatory for the crime. Retributivists argue that
criminals deserve punishment on account of their wrongdoing. If they deserve
punishment, then justice demands we punish. We do injustice if we fail to punish
criminals because they then do not receive what they deserve.
Deterrence Theory: According to this theory, the object of punishment is not only to
prevent the wrong doer from doing a wrong a second time but also to make him an
example to other persons who have criminal tendencies. Salmond considers deterrent
aspects of criminal justices to be the most important for control of crime. The chief
aim of the law of crime is to make the evildoer an example and a warning. The
deterrent theory of punishment is utilitarian in nature. For a better understanding we
can say like, ‘The man is punished not only because he has done a wrongful act, but
also in order to ensure the crime may not be committed.’ It is best expressed in the
word of Burnett, J who said to a prisoner: “Thou art to be hanged not for having
stolen a horse, but in order that other horses may not be stolen”.
Preventive Theory: Preventive theory of punishment seeks to prevent prospective
crimes by disabling the criminals. Main object of the preventive theory is
transforming the criminal, either permanently or temporarily. Under this theory the
criminals are punished by death sentence or life imprisonment etc. The preventive
theory concentrates on the prisoner and seeks to prevent him from offending again in
the future. Critics points out that preventive punishment has the undesirable effect of
hardening first offenders, or juvenile offenders, when imprisonment is the
punishment, by putting them in the association of hardened criminals.
REFORMATIVE THEORY (suitable theory) : According to this theory, the object of
punishment is the reformation of the criminals and in my opinion this is the best suitable form
of punishment for the Criminal System in India. The object of the punishment should be to
effect a moral reform of the offender. The Supreme Court in the case of State of Gujarat v.
Hon’ble High Court of Gujarat, highlighted the objective behind the effectiveness of the
reformative theory. Krishna Iyer J highlighted what ought to be the essential thrust of
sentencing punishment in India by stating that: Reformation should be the dominant objective
of a punishment and during incarceration every effort should be made to recreate the good
man out of convicted prisoners. Reformation and Rehabilitation of a prisoner are of great
public policy and hence they serve a public purpose. 1 The Supreme Court further in the case
of Narotam Singh v. State of Punjab, has rightly said that reformative approach to
punishment should be the object of criminal law, in order to promote rehabilitation without
offending community conscience and to secure social justice. 2
1
State of Gujarat v. Hon’ble High Court of Gujarat, AIR 1998 SC 3164.
2
Narotam Singh v. State of Punjab, AIR 1978 SC 1542.
