Punishment is one of the most effective instruments that have been widely used all over the ages to prevent social disorder, chaos and crime. It might not be wrong to say that the very objective of punishment is to balance the repercussion of a criminal act of an offender. Antony Flew, HLA Hart and Stanley Benn have defined punishment as something unpleasant in lieu of an offence against legal rules, imposed by a legal authority and administered by the society.[1] According to Durkheim, punishment was referred as an act of vengeance. He considered that giving punishment was necessary to neutralize the negative effect of the criminal activity.
Theory of Retribution –
The retributive theory of punishment takes its inspiration from the Law of Retaliation. Under this, the offender in the crime has to undergo the same wrong that he has caused to the victim of the crime. The retributive theory of punishment punishes the offender because of the ideology that the offender deserves to be punished for the crime he has committed. It looks at transgression as the root cause for giving punishment.
Sir Salmond has aptly said the retributive objective of punishment is to avenge the wrong caused by the offender against the society. The theory rightly suggests that the offender needs to be liable for the offence he has committed. A moral satisfaction is obtained from the punishment which is given importance, as punishment is seen as “payback” as retributivists believe that the criminals deserve the punishment they receive.[2]
Tenets of the Theory –
- The retributive punishment should only be applicable if the criminal act was done voluntarily.
- The punishment awarded to the offender should be in balance to the wrong of the act that the offender has committed.
- The clarification behind such punishment should be to return the pain and suffering that the offender has committed.
The retributive theory works on two principles that are desert and proportionality. Desert means the wrong done by the criminal because of which the crime happened. It is a three-fold link between the individual who is to be punished, what he deserves, and the way in which he deserves. The degree of deserve and punishment awarded should be equivalent as proposed by the law.
According to Immanuel Kant, the idea of morals and punishment should match the reasonability of morality and justice. He believed that guilt completely justifies the punishment awarded to the offender. He was of the view that humans are free beings and enjoy legal right, if a person snatched someone else’s right then his rights should also be suspended.
In Bachan Singh v. State of Punjab[3] case, it states that the theory of retribution in context of society’s reprobate is not an outmoded concept in reference to heinous crime. Lord Denning mentioned that punishment should reflect the response of society towards a particular crime. Hence, if the society thinks that heinous crimes by offender should be severely punished then saying the punishment should be deterrent, preventive or reformative would be against the society at large.
[1] Universiti Sultan Zainal Abidin
[2] http://lawtimesjournal.in/the-retributive-theory-of-punihsment-a-brief/
[3] Bachan Singh v. State of Punjab, 980 SCC (1) 754
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