FINANCIAL RELATIONS

BETWEEN
CENTRE & STATE

NAME : ARJUN .A. P

SUBJECT : CONSTITUTIONAL LAW - II
YEAR : II YEAR
COURSE : BA,BL (HONS)
SECTION : B
REGISTER NO : H13013

INDEX:

S.N
o

Content

Page No.

1.

Table of cases

2.

Introduction

4.

Deterrent and Preventive Theories

5.

Reformative Theory

6.

Retributive Theory

10

7.

Theory of Compensation

11

8.

Conclusion

12

9.

Bibliography

13

CASES REFERRED:

S.N
o

1.

2.

Case Citation

Musakhan And Ors. vs State Of Maharashtra,

AIR 1976 SC 2566, 1976 Criminal LJ 1987, (1977) 1 SCC 733

Rattan Lal vs State Of Punjab,

1965 AIR 444, 1964 SCR (7) 676
Bhim Singh, Mla vs State Of J & K and Others,

3.

AIR 1986 SC 494, 1986 Criminal LJ 192, 1985 (2) SCALE 1117, (1985) 4 SCC 677,
1986 (1) UJ 458 SC

INTRODUCTION:

LORD BRYCE - "Administration of justice is the firmest pillar of a government. Law exists
to bind together a community. It is sovereign and cannot be violated with impunity."
According to Salmond the two essential functions of as state are:
1. War.
2. Administration of Justice.
He said that the administration of justice implies the maintenance of right, within a political
community by means of physical force by the state.
Necessity for Administration of Justice:
The very nature of human beings is chaos and violence. It was realised that men had to
submit themselves to some sort of order to enable themselves to obtain collective good.
Justice has to be administered in order to keep man from causing harm to himself or others.
There is a classification between the types of justice.
1. Civil Justice.
2. Criminal Justice.
A rough distinction between criminal and civil wrongs is that crimes are public wrongs and
civil wrongs are private wrongs. A CRIME is an act deemed to be harmful to the society in
general, while a CIVIL WRONG is deemed to only infringe on the rights of an individual.
Purpose of Criminal Justice:
The main purpose is to punish the wrongdoer. He is punished by the state. From very ancient
times, a number of theories have been given concerning the purpose of punishment. The
views of one class of theories is that punishment must lead to protection and welfare of the
State and society, while the other class of thinking believes that punishment is solely a matter
of revenge or retribution.
There are 5 theories of punishment, about which we will deal in brief in the forthcoming
pages.

Deterrent Theory:
The dictionary meaning of the word "deterrent" - "A thing that discourages or is intended to
discourage someone from doing something."
The views of veterans/authors, in the field of law and philosophy, about the deterrent theory
of punishment are as follows

Salmond - "Punishment is before all things, a deterrent. The chief end of the law of
crime is to make the evil doer an example and a warning to all that are like minded as

him"
Locke - "Offence must be made a bad bargain for the offender"
Manu Smriti - "Penalty (dhanda) keeps people under control, it protects them and is
therefore the source of righteousness".
Paton - "By the treatment given to the prisoners, the others will be deterred from
breaking the law."
The deterrent theory was the basis of punishment in England in medieval times till the
beginning of the 19th century. It resulted in severe and inhuman punishments being inflicted
even for minor offences in England. Even in India, the penalty of death or the mutilation of
limbs were imposed for petty offences.
According to the deterrent theory of punishment, the main objective of punishment is not just
preventing a wrongdoer from doing it again but also to make him an example to other people
who have similar criminal tendencies.
This theory is best explained by the words of a judge, when he said - "I am not punishing you
for stealing a sheep; I am doing so that a sheep may not be stolen again".

___________________________________________________________________________
1. Deterrence,1973. By G.J.Hawkins and F.E.Zimring

Criticism:

Irrespective of provisions for severe punishments, crimes continued.

During the time of Queen Elizabeth, the punishment for pick pocketing was death, in spite of
that pickpockets were seen at work in crowds that gathered for the execution of the
condemned pickpocket.

Increase in severity of punishments has resulted in increase of crime rate.

Excessive harshness of punishments tends to defeat its purpose as it tends to arouse a feeling
of sympathy among the public, towards those who are being punished cruelly.

Hardened criminals are not afraid of punishments.

Punishment loses its horror once the criminal is punished. The more cruel punishments
become, the more hardened the human mind becomes, adjusting themselves, like fluids to a
container.
Preventive Theory:
The dictionary meaning of the word "preventive" is - "Designed to keep something
undesirable such as illness or harm from occurring".
The views of veterans/authors, in the field of law and philosophy, about the deterrent theory
of punishment are as follows

Paton - "The preventive theory concentrates on the criminal but seeks to prevent him

from offending again in the future."

Justice Holmes - "There can be no case where the lawmaker makes certain conduct
criminal without his thereby showing a wish and purpose to prevent the conduct.
Prevention would accordingly seem to be the chief and only universal purpose of
punishment. The law threatens certain pains if you do certain things, intending to give
you a new motive to not do that act."

___________________________________________________________________________
1. The Deterrent effect of death penalty: Fact vs Faith, By Hans Zeisal.

This theory aims at disabling the offenders from repeating offences by such punishments like
imprisonment, death, exile, forfeiture etc. By putting a criminal in jail, he is prevented from
committing another crime. Likewise, by dismissing a person from office, he is deprived of an
opportunity to commit the crime again.
Relation between Deterrent and Preventive Theories:

There is a difference between deterrent theory and preventive of punishment. The

deterrent Theory aims at giving a warning to the society at large and a lesson to others
that punishments follows crime and therefore crime should be avoided.

Whereas the preventive theory aims at disabling the actual criminal from doing harm.
Its main objective is not to act on the motive of the wrongdoer but to disable his
physical power to commit the offence.

___________________________________________________________________________
1. Jurisprudence and Legal Theory, V.D.Mahajan.
2. Jurisprudence and Legal Theory, Achuthen Pillai

Reformative Theory:
The dictionary meaning of the word "reformative" - "Intended or tending to make changes
in something in order to improve it."
According to this theory, the object of the punishment should be to reform the criminal. Even
if an offender commits a crime, he does not cease to b a human being. He may have
committed a crime under circumstances which might never occur again.
He must be educated and taught some art of industry during the period of his imprisonment
so that he may be able to start his life again after his release from jail. While awarding
punishment, the judge should study the character and age of the offender, his early breeding,
his education and environment, the circumstances under which he committed the offence, the
object with which he committed the offence and other factors.
The advocates of the reformative theory contend that by a sympathetic, tactful and loving
treatment of the offenders, a revolutionary change may be brought about in their characters.
Even the cruel hardened prisoners can be reformed Severe punishment can merely debase
them. Man always kicks against pricks. Whipping will make him balk. Threat will result in
resistance. Prison hell may create the spirit of defiance in God and man. Hanging criminals is
just an admission of te fact that human beings have failed to reform and erring citizen.

Salmond says - " The deterrent motive should not be abandoned in favour of the
reformative altogether since the permanent influence of criminal law in this stern
aspect contributes largely to the maintenance of moral and social habits which shall
prevent any of the abnormal from committing crime and also directly deter any but
the sub normal apart from exceptional circumstances from committing crimes."

Reformation theory is being growingly adopted in case of juvenile offenders. The oldest
legislation on the subject in India is the reformatory schools Act 1890 which aimed at
preventing the depraved and delinquent children from becoming confirmed criminals in the
coming years. It is applied to the children under 15 years. Section 4 abolished all proceedings
for offences other than homicide against children.
___________________________________________________________________________
1. On justice in Society, M.Ginsberg.

The reformatory schools act has been extensively amended in its application to its various
states by state legislatures. Example - The Bombay children Act,1920.Est Punjab children act
1949,UttarPradesh children act 1951,West Bengal children Act 1959,Rajasthan children Act
1970 and Mysore children Act,1964,etc.,
The Supreme Court observed that this act is a piece of social legislation which "is meant to
reform juvenile offenders with a view to prevent them from becoming hardened criminals by
providing and educative and reformative treatment to them by government".*
Criticism:

There are many incorrigible offenders who are beyond the reach of reformative

influences and with whom crime is not a bad habit but an instinct.
The Theory of reformative punishment alone is not enough and the reformative theory

and deterrent theory must have the last word.

The primary and essential end of criminal justice is deterrence and not reformation.
Reformative theory can only be extended to the very young and insane.
Reformative thinking should not be given undue prominence. The chances of
reformation are high in cases of youngsters than in the case of adults.

Relation between Deterrent and Reformative theories:

Reformative theory aims at changing a man and giving another chance to blend with the
society. Deterrent theory aims at punishing him and making it an example to deter others
from doing such acts.
As Salmond points out, there are men who are incurably bad. According to him the perfect
system of criminal justice is not based on either reformative or deterrent theories.
What is acceptable is a compromise between the two theories and in that the deterrent theory
must have the predominant influence.
___________________________________________________________________________
* Musakhan and Others. vs State Of Maharashtra, Citations: AIR 1976 SC 2566, 1976; Criminal LJ 1987,
(1977) 1 SCC 733.
* Rattan Lal vs State Of Punjab, Citations: 1965 AIR 444, 1964 SCR (7) 676.

Retributive Theory:
The meaning of the word "retribution" - "Punishment inflicted on someone as vengeance
for a wrong or criminal act".
In the primitive society, punishment was mainly retributive. The person wronged was allowed
to have his revenge against the wrong doer. The philosophy of "an eye for an eye" and "a
tooth for a tooth" was recognised and followed.
The retributive aspect was recognised in ancient penology. Early Penal law was based on the
principle that "All evil must be requited".

Plato being an advocate of this theory said - "If justice is the good and health of the
soul, and injustice is its disease and shame, chastisement is their remedy; Expiation is

beautiful because all that is just is beautiful and suffering for justice is also beautiful."
Immanuel Kant - "Punishment must be inflicted upon a criminal for the sole reason

that he has committed a crime."

Sir James Stephen - "The criminal law stands to passion of revenge in much the
same relation as marriage to the sexual appetite."

Another view is that retributive punishment is an end in itself. Apart from gain to society and
the victim, the criminal should meet his reward in equivalent suffering. Expiation means the
suffering or punishment for an offence. "The murderer has expiated his crime on the
gibbet."
CRITICISM:

Punishment by itself is an evil and can be justified only under the grounds that it is

going to yield better results.

Revenge is wild justice.
Retribution must only be a subsidiary purpose served by punishments.

___________________________________________________________________________
1. General view of criminal law of England, Sir James Stephen.
2. Essay on capital punishment, Sir James Stephen.

Theory of Compensation:

The meaning of the word "Compensation" - "Something, typically money, awarded to

someone in recognition of loss, suffering, or injury".
According to this theory, the object of punishment must not merely be to prevent further
crimes but also to compensate the victim of the crime. The contention is that the mainspring
of criminality is greed and if the offender is made to return the ill-gotten benefits of the
crime, the spring of criminality would dry up.
In certain cases the Supreme Court has awarded compensation to persons who have suffered
at the hands of government servants.*
CRITICISM:
This theory tries to over simplify the motives behind crimes. The motive of crimes is not
always economic. Offences against state, against justice, against religion, against marriage
and even against persons, may not always be actuated by economic motives. There may be
other motives, in which case the theory of compensation may be neither workable nor
effective.
Even in the case of offences actuated by such motives, the economic position of the poor
offender may not be in a position to pay compensation. And if the offender in rich, paying
any amount of compensation will act as no real punishment to him.

___________________________________________________________________________
1. Lectures on Jurisprudence, Suryakant Mahadeo Gujar.
* Bhim Singh, Mla vs State Of J & K and Others, Citations: AIR 1986 SC 494, 1986 Criminal LJ 192, 1985 (2)
SCALE 1117, (1985) 4 SCC 677, 1986 (1) UJ 458 SC.

CONCLUSION:

A perfect system of criminal justice cannot be based on any one theory of punishment. Every
theory has its own merits and every effort must be made to take the good points of all. The
deterrent aspect of punishment must not be ignored. Likewise, the reformative aspect must be
given its due place.
The personality of the offender is as important as his actions and we must not divorce his
actions from his personality. The offender is no merely a criminal to be punished. He is also a
patient to be treated. Punishment must be in proportion to the gravity of the crime. It must be
small for minor crimes and heavy for major crimes. The first offender should be leniently
treated.
Special treatment should be given to the juvenile offenders. It must not be forgotten that
motto for the crime is generally lacking in the case of children. They commit pretty offences
on account of bad company and bad neighbours. Their cases must be handled with
imagination and sympathy. Children must be tried in special courts setup for them. Those in
charge of them must try to find out ways and means for reforming them and not punishing
them.
A criminal should be able to secure his release by showing some improvement conduct in jail.
He who behaves better should be given good diet clothes and leisure and a part of his
sentence should also be remitted. The object of his concession is to convince the offender that
the normal and free life is better than the life in the jail. The government should setup mental
hospitals and reformatories in place of jails and living conditions in jails should be improved.

BIBLIOGRAPHY:

BOOKS REFERRED:
1. V.D.Mahajan. Jurisprudence and Legal Theory. Eastern Book Company, 5th Edition
Reprinted 2015.
2. Suryakant Mahadeo Gujar. Lectures on Jurisprudence. Lawmann Academic Series, 2015
Edition.
3. P.S.Achuthen Pillai. Jurisprudence and Legal Theory. Eastern Book Company, 3rd Edition
Reprint 2005.

WEBSITES REFERRED:
1. http://www.legalserviceindia.com/articles/pun_theo.htm
2. http://www.lawnotes.in/Theories_of_Punishments
3. http://www.cliffsnotes.com/more-subjects/criminal-justice/sentencing/theories-ofpunishment
4. http://indiankanoon.org/

ESSAYS AND JOURNALS REFERRED:

1. General view of criminal law of England, Sir James Stephen.
2. Essay on capital punishment, Sir James Stephen.
3. On justice in Society, M.Ginsberg.