The Theories Compared
Chapter Thirty-Nine
Syllabus topic 2, "Theories of Punishment"
Pages 158 to 161 of 806
In one line
This is the revision chapter: the six theories in one table, the objection to each, and the sentence each would produce on the same facts.
In the wording a student can write in an exam: the theories of punishment differ in what they look at, in what they aim at, in whom they consider and in what limits them. Retribution looks back at the offence and is limited by desert. Deterrence, prevention and reformation look forward, at the public, at the offender's capacity and at the offender's character respectively, and each is limited only by a principle borrowed from elsewhere. Expiation looks at the guilt and aims at restoration. Compensation looks at the victim and aims at repair.
The comparison
| Looks at | Aims at | Whose interest | Its own limit | Its main objection | |
|---|---|---|---|---|---|
| Retribution | The offence already committed | Giving the offender what is deserved | The moral order | Desert. Never more than the offence warrants | Requires suffering that helps nobody |
| Deterrence | Future conduct of others and of the offender | Fewer offences, through fear | Society at large | None of its own; borrows proportion | Uses the offender as a means, and its evidence is weak on severity |
| Prevention | The offender's capacity to offend | Disablement | Society at large | None of its own | Temporary, expensive, and punishes for a predicted future |
| Reformation | The offender's character | Change in the offender | The offender and society | None of its own; tends to indeterminacy | Evidence disputed, and undeliverable in a bad prison |
| Expiation | The guilt created by the offence | Discharge of guilt and restoration | The offender and the community | The measure of the guilt, which it cannot state | The mechanism does not exist |
| Compensation | The harm to the victim | Repair | The victim | The extent of the loss | Not a theory of punishment; depends on means |
The same facts, six sentences
A twenty five year old man with one previous conviction for a similar offence is convicted of causing grievous hurt in a fight outside a bar. The victim has lost the use of a hand and cannot work.
Retribution. A sentence proportionate to the harm and to the culpability. The previous conviction is not part of the seriousness of this offence, so on a strict view it does not increase the sentence, though it removes the mitigation a first offender would have.
Deterrence. A sentence heavy enough that others contemplating a fight will think again, which on these facts might exceed what desert alone would require, because the offence is common and public.
Prevention. A sentence long enough to keep him from doing it again, and, more precisely targeted, an order restraining him from the locality or from licensed premises if such an order were available.
Reformation. Whatever would change him. Given his age and his single previous conviction, that points to supervision, to work, and possibly to treatment for alcohol, rather than to a long sentence in an institution that will teach him nothing.
The Theories Compared
Expiation. A penalty he can complete and after which he is restored, so that the conviction does not follow him for life.
Compensation. An order under section 395 of the Bharatiya Nagarik Suraksha Sanhita 2023 requiring him to compensate the victim for the loss of the hand and of the earnings, and, if he cannot pay, an application under the State scheme in section 396.
What a real court does. It imposes a term of imprisonment fixed by no stated principle, may or may not order compensation, and does not consider the other four at all. That gap between the six theories and the single ordinary practice is the subject of [India Without a Sentencing Policy], and it is the best conclusion an answer comparing the theories can reach.
The three questions, applied
From [What a Theory of Punishment Is]: why punish, whom may we punish, and how much.
Why punish at all? Retribution answers from desert; the other three forward looking theories from consequences; expiation from the discharge of guilt; compensation from the victim's loss.
Whom may we punish? Only retribution and expiation answer this directly, because both are triggered by the offence. Deterrence, prevention and reformation all have, in principle, no reason to confine themselves to the guilty, and every workable version of them imports the retributive limit.
How much? Retribution answers with proportion but cannot fix the scale. Deterrence answers with whatever works, which has no ceiling. Prevention answers with as long as the danger lasts, which has no ceiling. Reformation answers with as long as the treatment takes, which is indeterminate. Compensation answers with the extent of the loss, which is exact but has nothing to do with punishment.
That row is the argument for a mixed theory, and it should be the last thing an answer says before its conclusion.
What the theories agree on
Worth saying, because a comparison that finds only differences is incomplete.
All six accept that punishment requires a conviction, in practice if not in principle.
All six accept that the state and not the victim inflicts it, though compensation and restorative processes give the victim a part.
None of them, on its own, produces a workable system. A purely retributive system punishes when nothing is gained. A purely deterrent one has no ceiling. A purely preventive one detains for predictions. A purely reformative one is indeterminate. A purely expiatory one is a theology. A purely compensatory one lets the rich pay their way out.
The Theories Compared
What beginners get wrong
They rank the theories. There is no correct order and examiners do not expect one.
They pick a favourite and defend it. A comparison question asks for a comparison, and the conclusion should be about the mixture rather than about a winner.
They forget that a single sentence can serve several. A term of imprisonment for a serious offence is retributive in its length, deterrent in its publication, preventive in its duration and reformative in whatever the prison does. The theories are not competing sentences; they are competing reasons.
A worked example
One set of facts, five answers. Mahesh, aged forty, with two previous convictions for theft, is convicted of a third theft of goods worth sixty thousand rupees from his employer.
| Theory | Its question | Its answer on these facts |
|---|---|---|
| Retributive | What does he deserve? | A sentence proportionate to a breach of trust by an employee; his record does not increase desert for this act, though it may show he was not acting out of need |
| Deterrent | What will discourage repetition, by him and others? | A sentence noticeable enough to be reported among people in similar positions; but the theory must answer why the previous two sentences did not deter him |
| Preventive | How is he stopped from doing it again? | Custody while it lasts; and, outside the sentence, the preventive security for good behaviour in section 129 of the Bharatiya Nagarik Suraksha Sanhita 2023 |
| Reformative | What would make him less likely to offend? | Least persuasive here: a third offence at forty, after two sentences, is the case in which the reformative claim is weakest |
| Expiatory | What restores the position? | Restitution of the sixty thousand rupees and compensation, which section 395(3) of the Sanhita permits even where no fine is imposed |
How the law resolves it. No single theory decides. Section 13 of the Bharatiya Nyaya Sanhita 2023 would not apply unless both offences fall within its Chapters and carry three years or more. The previous convictions bar admonition under section 3 of the Probation of Offenders Act 1958 and release under section 401 of the Sanhita, but not release under section 4 of that Act, which has no such bar. And the court sentences within the range, treating the record as an aggravating circumstance and the restitution as a mitigating one.
The lesson of the example. The theories are not rival statutes to choose between; they are the reasons a sentencer weighs, and Indian law has adopted all of them in different provisions.
Quick revision
- Retribution: backward looking, limited by desert, objection that it requires useless suffering.
- Deterrence: forward looking at others, no internal ceiling, weak evidence for severity.
- Prevention: forward looking at capacity, certain but temporary and expensive.
- Reformation: forward looking at character, disputed evidence and undeliverable in a bad prison.
- Expiation: aims at discharge of guilt and restoration, mechanism does not exist, demand is right.
- Compensation: aims at repair of the victim's loss, not a theory of punishment, depends on means.
- The three questions: only retribution and expiation confine punishment to the guilty; only retribution supplies a ceiling; none supplies the scale.
- Conclusion: a mixed theory, forward looking in general aim and retributive in its limits, is the only workable position, and it is the one Indian law occupies without saying so.
The Theories Compared
Test yourself
1. Which theories supply their own upper limit on the amount of punishment, and which do not? Only retribution supplies one, in the requirement that the punishment be no more than the offence deserves; expiation supplies one in principle but cannot state the measure; and compensation is limited by the extent of the loss, though it is not punishment. Deterrence, prevention and reformation supply none: more punishment may deter more, disable longer, or allow more treatment, so each has to borrow a ceiling from retributive proportion.
2. Which theories can, in principle, justify punishing an innocent person, and how is that answered? The three forward looking theories, deterrence, prevention and reformation, since each is justified by consequences and consequences might in a given case be improved by punishing an innocent person. It is answered by importing the retributive requirement that only the guilty may be punished, and, in the case of deterrence, by the further argument that a practice of punishing the innocent could not be concealed and would produce worse consequences overall.
3. Give a single sentence that serves four theories at once. A published term of imprisonment for a grave offence: it is retributive in being proportioned to the offence, deterrent in being known to others, preventive for its duration, and reformative to the extent that the prison provides education, work or treatment. The theories are competing reasons for a sentence rather than competing sentences.
4. What conclusion should a comparison of the theories reach? That no single theory produces a workable system, and that the defensible position is a mixed one in which the institution of punishment is justified by its forward looking effects while retributive desert supplies the limits: only the guilty, and only what the offence deserves. Indian law occupies that position in practice without having stated it.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.