B.A. LL.B. (Five Years) Sem 9 Penology and Victimology 2014 Jun Question Paper with Solutions

Part A: The deterrent theory

Meaning. The deterrent theory says the State punishes so that the offender, and everyone who learns of his punishment, will fear to commit the crime. Salmond wrote that the chief end of the criminal law is "to make the evildoer an example and a warning to all that are like-minded with him". Punishment makes every offence "an ill bargain to the offender". The idea is old. Manu wrote that the whole world is kept in order by punishment.

Its premises.

1. People are rational enough to weigh consequences.
2. They know that crime is punished.
3. The expected pain of punishment is greater than the expected gain of the crime.
4. So they refrain.

Its two forms.

1. Special (individual) deterrence: the offender, having suffered, will not repeat the crime.
2. General deterrence: others, seeing him punished, will not imitate him. Bentham thought this, punishment "in the way of example", the principal object.

1. Minimum sentences. Rape carries rigorous imprisonment of not less than ten years (Bharatiya Nyaya Sanhita 2023, BNS s.64(1)). Rape of a woman under sixteen carries not less than twenty years (s.65(1)). A minimum sentence is general deterrence written into the statute.
2. The death penalty. The Law Commission's 35th Report (1967) called deterrence the strongest justification of the death penalty. Its 262nd Report (2015) found no evidence that death deters more than life imprisonment.
3. Certainty through procedure. The Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) requires forensic visits for serious crimes (s.176(3)) and time limits in investigation. These aim to raise the certainty that crime is detected.

Jagmohan Singh v. State of Uttar Pradesh, (1973) 1 SCC 20. A man sentenced to death for murder challenged the death penalty under Articles 14, 19 and 21. The Constitution Bench upheld it. It noted that proposals to abolish it had not been accepted by Parliament. It doubted that life imprisonment, which then meant about a dozen years in practice, could be an adequate substitute. The case reflects the deterrent and protective reasoning behind keeping the gravest penalty.

Criticism.

Part B: The preventive theory

Meaning. The preventive (or disabling) theory says the State punishes to make the offender unable to commit more crimes. It does not rely on his choice. It removes his opportunity by locking him up, sending him away, disqualifying him or, at the extreme, putting him to death.

1. Salmond called it the second end of punishment: to prevent "a repetition of wrongdoing by the disablement of the offender".
2. Bentham said punishment may act on the offender's "physical power", by disablement.
3. Garofalo and the positive school held that dangerous offenders who cannot be reformed should be eliminated or segregated.

Its conditions.

1. The offender is dangerous and likely to offend again if free.
2. The punishment removes his chance to offend while the danger lasts.
3. So the measure of punishment is the length of the danger, not the gravity of the past crime.

Its forms in Indian law.

1. Bonds for keeping the peace (BNSS s.126) and for good behaviour from suspected persons and habitual offenders (ss.128 and 129).
2. Externment of dangerous persons under State police laws.
3. Preventive detention, allowed by Article 22(3) to (7) of the Constitution, with safeguards.

Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148. A man treated by the police as a habitual criminal complained of domiciliary visits by day and night. The Supreme Court upheld the surveillance regulations but read them down. Surveillance is allowed only of persons against whom there is reasonable material showing "a determination to lead a life of crime". Prevention must respect liberty and privacy.

Criticism.

1. Prediction is unreliable. No one can be sure who will offend again, so the theory risks punishing for crimes not yet committed.
2. Disproportion. It may justify long terms for petty repeat offenders.

Indian law's position

Indian law does not adopt either theory alone. It uses deterrence in minimum sentences and prevention in whole-life terms. It also uses reform through probation and parole, and proportion through individualised sentencing. Salmond himself said the perfect system is a compromise between the deterrent and the reformative principles.

Conclusion. The deterrent theory punishes to create fear, special and general. As Beccaria and Bentham taught, it works best when punishment is certain, prompt and just severe enough. Indian law reflects it in minimum sentences and in Jagmohan Singh, though Mohammad Giasuddin warns against a terror outlook. The preventive theory punishes to disable the dangerous offender, as in whole-life sentences under Swamy Shraddananda. Preventive justice works within the limits set by Gobind. Both are needed, but neither is enough without reform and proportion.