The Preventive Theory of Punishment
The Preventive Theory of Punishment
The Preventive Theory of Punishment
If the deterrent theory tries to put an end to the crime by causing fear of the punishment in the
mind of the possible crime-doer, the preventive theory aims at preventing crime by disabling
the criminal, for example, by inflicting the death penalty on the criminal, or by confining him
in prison, or by suspending his driving license, as the case may be. Thus, the extreme penalty,
the death sentence, ensures that, once and for all, the offender will be prevented from
repeating the heinous act. In the past, maiming was considered an effective method of
preventing the wrong-doer from committing 130 the same crime in the future, by
dismembering the offending part of the body. Thus, a thief's hand would be cut off, or a
sexual off. In the ultimate analysis, the preventive mode of punishment works in three ways,
a) by inspiring all prospective wrong-doers with the fear of punishment;
In this connection, the following extract from Rule 58 of the International Standard
Minimum Rules is illuminative: "The purpose and justification of a sentence of imprisonment
or a similar measure derivative of liberty is ultimately to protect society against crime. This
end can only be achieved if the period of imprisonment is used to ensure, so far as possible,
that upon his return to society, the offender is not only willing, but also able, to lead a law –
abiding and self-supporting life."
This argument is, however, limited in its application, and it must be remembered that in a
country like India, where millions live below the poverty line, it may even act as an
encouragement to the commission of crimes. Lamenting on the conditions prevailing in jails
in India, Justice Krishna lyer opens his judgment in Rakesh Kaushik Vs Superintendent,
Central Jail (1980 Supp. S.C.C. 183) with the following poignant question : "Is a prison term
in Tihar Jail a post-graduate course in crime ?" In Sunil Batra (II) V. Delhi Administration
(1980 3 S.C.C. 488), the Supreme Court regarded a simple letter from a co-prisoner as
sufficient to invoke proceedings by way of habeas corpus. The judgment deals at length with
the shocking conditions prevailing in Indian prisons and suggests a series of prison reforms.
Lamenting on the atrocities prevailing in Delhi's Tihar Jail, Justice Krishna lyer, in the course
of his learned judgment, observes a follows.
(2) Deportation
(4) Imprisonment
(5) Solitary confinement
(7) Fine.
CAPITAL PUNISHMENT :
In the history of punishments, capital punishment has always occupied a very important
place. In ancient times, and even in the middle ages, sentencing offenders to death was a very
common kind of punishment. Even what might be considered as minor offences in modern
criminal law, attracted the death penalty in those days. In England, there was a time when
there were as many as 200 felonies for which the punishment was death. Even the offence of
theft of property worth more than two shillings would attract the penalty of death. Till the
middle of the seventeenth century in England, even the penalty for the offence of forgery was
death. Then there arose a movement in the 18th century, which raised its voice of protest
against the in human of punishment. Bentham can be considered as the spearhead of this
movement. He analysed the causes of crime, and showed how punishment would serve its
purpose. According to him, punishment itself was an evil, but a necessary evil. No
punishment was to be inflicted unless it brought greater good. The object of capital
punishment is said to be two-fold. By putting the offender to death, it may instill fear in the
minds of others and teach them a lesson. Secondly, if the offender is an incorrigible one, by
putting him to death, it prevents the repetition of the crime by that person on a permanent
basis. But it is evident that this punishment is not based on the reformative object of
punishment, in the sense that it is a step of despair.