Which Theory Indian Law Follows

In one line

Indian law follows no single theory: it is deterrent in its statutory scheme, retributive in the way it grades offences, reformative in the way it requires sentences to be passed, preventive at the margins and compensatory by statutory duty, and the honest answer names the blend and shows where each element bites.

How to argue the question

An answer that says "India follows the reformative theory" and quotes one judgment is a weak answer, because the same judgment usually contains three theories. The way to argue it is to look at four places where a legal system reveals what it believes, and to take each in turn.

• What punishments the law provides.
• How it decides how much punishment.
• How it treats the offender's future.
• What it does about the victim.

One: the punishments provided

Section 4 lists death; imprisonment for life; imprisonment, which is of two descriptions, rigorous, that is with hard labour, and simple; forfeiture of property; fine; and community service.

The list is a mixture and it is worth reading as evidence.

• Death can only be preventive or retributive. It reforms nobody.
• Imprisonment, in its rigorous form with hard labour, carries the marks of an older penology; in its simple form it is closer to pure incapacitation.
• Forfeiture and fine are compensatory in form and deterrent in operation.
• Community service is reformative and reparative in a single measure, and it is the one item added in 2023.

A statute that keeps the death penalty and adds community service in the same enactment is not committed to one theory.

Two: how much punishment

Here the evidence is stronger, and it points two ways at once.

Retributive elements. The Sanhita grades offences by gravity and fixes maxima accordingly, which is desert reasoning. Machhi Singh v. State of Punjab, (1983) 3 SCC 470, decided after seventeen deaths in five villages in one night, explains the rarest of rare test through the community's collective conscience and lists five heads, the manner of commission, the motive, the anti social nature of the crime, its magnitude and the personality of the victim, every one of which is a head of gravity.

Deterrent elements. Section 13 provides enhanced punishment after a previous conviction: a person convicted of an offence against property or against the human body punishable with three years or more who commits another such offence is liable to imprisonment for life or to imprisonment which may extend to ten years. A sentence increased because of a previous conviction is not increased because the second offence is graver. It is increased to deter and to incapacitate.

Reformative elements. Santa Singh v. State of Punjab, (1976) 4 SCC 190, where a man was sentenced to death without being heard on sentence because his advocate was absent, made the sentencing hearing a compulsory stage of the trial: sentencing must not be consigned to a subsidiary position, the hearing is not confined to oral submissions, and its omission is not a mere irregularity. The list of factors it prescribes is dominated by facts about the offender.