Crime and Punishment

Crime and punishment

Crime being a lucid topic becomes tedious when we get to analyze it coherently. The crime sought to have a deterrent effect in the society. So is the punishment to the society in general and a person with malicious intention in particular. Thus it is very much important to dredging the grey lines between their relationships of being “practically akin” from being “morally oxymoron”.

Crime is in general term violation of law, either divine or human, an omission of a duty commanded, or the commission of an act forbidden by law while punishment in generality is penalty inflicted for a crime. In the words of Salmond “punishment 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 likeminded with him”[1].

Different theories of punishment

  1. Utilitarian theory of punishment: the most alluring theory transcends from the widely accepted philosophy of “origin of states”, where individuals surrender their liberty to the state in lieu of security. The means to achieve public tranquillity in a society is through deterrence that a punishment excels and not in prescribing punishments.

Where deterrence inhibits you from doing an act alleged to be of criminal nature whereas rehabilitation aims at much wider goal where there is nothing to inhibit as you don’t have any ulterior intention.

The limitation to this theory is “excessive harshness of punishment which at most time require to plough the sense of deterrence, may mislead the public by arousing sympathy towards the person victimized of the same”

  1. Retributive theory: It can be simply stated as “theory of repercussion” or “conventional philosophy of punishment”. This theory is unable to explicate a justifiable take on “attempt and instigation in a crime as well as on offences like rape & multiple murders”. The moment a person does a wrongful act, he is giving acquiescence for the wrong of same magnitude to him.

Retribution is different from revenge, in retribution the force of punishment should be proportional but in revenge the same can exceed the proportionality.

  1. Mixed theory of punishment:

This theory is amalgamation of the two above-mentioned theories. As per the mixed theory of punishment, the utilitarian theory will answer the duty of legislator who makes the law (based on public good) while the retributive theory demonstrate the duty of judges who enforces the law.

In this theory, the sphere of public good is compromised.

Basic concept of Crime

Crime is an indispensible trait of every society. It can be an act against the common spirit of the society. It is prominent in places facing the problem of ill distribution of services, economy radicalization and scarcity of resources, corruption in government and many more. Thus it is more of crime causation which is the inherent problem rather than the person convicted.

Crimes produce two kinds of injuries:

Social injury: Social injury pertains to the State and it is reparable through the imposition of fine prescribed by law.

Personal injury: It pertains to the victim and it is repaired by indemnification which is civil in nature.

Relation between Crime and Punishment

The relationship between crime and punishment is analogous to the indispensability of rights from duties. But the procedure employed should be just which would suffice both the crime doers as well as the victims.

The personality of the offender is as important as his actions and we must not divorce his action from his personality. He is not only a criminal to be punished but more as a patient to be cured.[2] Punishment of any kind which doesn’t cure inner-self of the wrongdoers is mere distraction from the then prevailing disabilities of the society.

Dostoevsky in his book “crime and punishment” opined that crime can be observed as a consequence of psychological imbalance and punishment as a suffering of a guilty conscience.[3] Without actual retribution of guilt, the concept of punishment is hollow, as most of the focus is on the remote goal which is public good rather than the immediate which is redressal of grievance in particular case.

There must be a kind of compensation to the victim by the state. The draft Bill on the subject is submitted to the Government in 1995 by the Indian Society of Victimology securing tentative framework for consideration. Section 357 of Cr.PC must be invoked in priority basis (payment by convict to the victim). Proper mode for chastisement of convicts must be provided.

Conclusion: As it is clear from the viewpoint, imprisonment should be given as a chastisement, not for punishment. The contemporary criminal punishment seeks to correct criminals and transform their behaviour, rather than merely penalising wrongdoers. With the passage of time, developments in the field of criminal science brought about a drastic change in the criminology. Individual treatment becomes a cardinal principle for reformation of the offenders. Thus the punishment is used as a measure to reclaim the offender and not to torture or harass him.

[1] Mahajan, V.D, Jurisprudence and Legal theory, 5th edition, EBC publication limited., page no-122

[2]  Mahajan, V.D, Jurisprudence and Legal theory, 5th edition, EBC publication limited., page no-132

[3] Dostoyevsky, Fyodor, Richard Paevear, and Larissa Volokhonsky, Crime and Punishment, New York: Knopf 1992

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