TO EXPLORE THEORITICAL FRAME WORK OF CAPITAL PUNISHMENT

The criminal part of the society needs to be changed in order to reform and make
them sober citizen and allow them to enjoy rights as normal citizens. There are
theories of punishments such as 1)Rehabilitative theory, 2) Preventive theory,3)
Deterrent theory,4) Retributive theory,5)Reformative theory ,.All these theories to
protect the society against the criminals. The Object of all these theories is capital
punishment one of the examples in the society that if any one committed crimes,he
will be punished in the same manner. India has adopted deterrent and reformative
theories. The reason, is that offender, who has committed crime, should be given
opportunity to reform himself.
Deterrent Theory:
According to this theory, the objective of criminal justice in punishing is to deter/
keep away the people from committing crime. The dint of punishment is to serve a
check on the person/ persons who would commit the crime. The penalty is imposed
to deviate a person/ persons from going that path of rectitude. However, this theory
of punishment failed to accomplish the objective as it was desired. A hardened
criminal becomes accustomed to the severity of the punishment and no amount of
deterrence prevent him from committing the crime. It has been observed that most
of the crimes are committed in a moment of excitement and this theory has also
failed to account for them
Preventive Theory:
As per this theory the punishment is imposed to the person convicted of a crime in
order to prevent him from repeat the same crime again in future. If an offender is a
habitual thief, his hands are chopped off just to prevent him from steeling again and
the repetition of the offence by the same person is just stopped. The punishment in
this sense is preventive or disabling. According to modern socialists, the death
sentence should be abolished. A large number of the murders committed by the
accused are not pre-planned but those are committed due to impulsiveness in grave
and sudden provocation or in a moment of excitement due to anger or fear. The
torrent of anger and provocation deadens his (criminals) intellect, finishes his
senses, debases his soul but such state of mind of that person is only temporary

and after he gets over the temporary insanity, the murderer becomes not only a
normal human being but he also repent on what he has committed.
Retributive Theory:
Formerly this theory was based on principles of revenge such as Eye for Eye, Hand
for Hand, Blood for Blood so it was known as Revenge Theory. The doctrine that
offender should be made to suffer the same pain which he has given to other in
same proportion to the injury caused to the victim. This
has been the source of the enactment of several penal laws. This theory which
justifies that if someone has taken anyones life in that case the punishment will be
equal i.e. by taking the life of that person or death punishment, if anybody has
broken anyones hand so the punishment for the that offender will be that his hand
also shall be broken and if anybody has damaged someones eye in that case
punishment shall be completed by damaging the eye of offender who has damaged
anybodys eye.. It has been regarded by modern thinkers as relic of barbarism. It is
cruel form of punishment and dupe the extreme ignorance of the cause of crime. It
is the superficial method of dealing with criminality instead of curing the disease
scientifically. Today the Retributive Theory has been constituted on the basis of idea
that punishment is necessary alkali to neutralize the acid of evil effect of the crime.
The purpose behind the retributive punishment is that the moral order of the
criminal could be restored and appease the disturbed conscience of the society
itself and the maintenance of concerning power of the State which is an
aggrievedwhen crime is committed against the society and inflicts punishment to
set the matters right.
Reformative Theory:
This theory considers the crime as a disease which must de diagnosed and cured
through scientific treatment like all other diseases of the body or mind of the
people. The punishment must not be considered as the ultimate end of the crime
but it is only a mean to remove the crime from the society. The objective of the
punishment according to this theory must not be wreck vengeance (retaliation/
revenge) but to reform the criminal by changing his mindset and prevent his
committing further crime. Crime is a malady and the aim of the every punishment
should be the reclamation or improvement of offender by prescribing and inducing
and imparting proper treatment. The perfect system of criminal justice is based

neither the deterrent nor the reformative principle exclusively but it is the result of
compromising between them. In this compromise predominant influence is
possessed by the principle of deterrent theory. The reformative elements must not
be ignored as well as should not be given undue importance also. It is not the duty
of State only to punish the offenders for committing crimes but it is also expected
from the society to bring the offenders to the justice and every member of the
society to discharge the duty of true citizen of the country by getting such people
punished who have infringed the rules and norms of the society as well as from
mischievous elements by deterring potential offenders from committing further
offences to rededicate evils and to reform criminal and turn them into law abiding
citizens. It is the affection of people towards each other living in similar type of life
at the same neighbouring places and collectively adopt the shape of society which
has been developed on the basis of love, affection, respect to each other and care
for all. Every religion in this world talks of these ethics and moral values of
behaviour in connection with their behaviour or interaction with each otheras part of
the same society but the modern law, policies, judicial system and punishment
ignore these values instead of bank on the negative emotions of lust, greed,
jealousy and fear coupled with emphasis on these negative emotions is the brutal
but highly popular culture of toughness that derives lot of demands for hard
justice and maximum punishment. There are no signs of culture of forget and
forgive There was a huge debate on the death penalty in the year, 2013 which has
been brought with renewed concept. The demand of Death penalty has also
increased manifolds in India for the crimes other than murder especially crimes
against women groups such as rape, rape and murder, cruelty and domestic
violence etc. and several organisations working for social development of women
have welcomed these demands at the same times. The judiciary has also awarded
death sentences for violent crimes against women. The effects of executing the
death sentences or capital punishment by hanging on the society are as under.
Critical analysison the theory of capital punishment
Retributive theory of punishment
Vengeance theory:

It isa concept of primitive society which consist of injury inflicted by way of

retaliation by victim of crime on actor of crime, which require the existence of victim
as well as a wrong deor.Its idea is severtity of punishment where victim of crime
inflicted the rationality harm that expunges the crime.Modern legal system has
given up the vengeance theorybecause of its heinous , barbaric and uncivilized
nature ofpunishment.
Retribution:
It focused on the offence commited by crime and just treatment of the individual
rather than prevention of crime.It asserts that blame is made effective through
punishing persons who deserve unpleasant consequence on account of some
wrongful act that they intentionally and willingly did.There are two accounts of
retribution , one consider retribution as revenge.The other consider retribution
doesnot demand community an equivalent act 0n the offender conduct.
Immanuel kant who discussed the concept of punishment .In the first half of the
metaphysics of morals ,for him just actions are deducted from the concept

and

punishment should satisfy the rationality of morals and justice.Guilt is sufficient

condition for justifying punishment.Retribution is not cruel because it treat a
criminal with dignity .It gives him chance to expiate his crime by suffering the
doctrine of desert fairness and proportionality rejects cruel ,barbaric and uncivilized
punishment of vengeance theory.Retribution theory puts substantion limitation on
punishment .When law and state inflicts harm on the wrong deor in fair manner,
new retributive theory is called reflection on vengeance theory.law condemns the
act of criminal by awarding punishment , if incidently that satisfying the vengeance
of victim of crime, the retributive theory cannot be criticized for that because they
never claimed it.Hegal has rightly objected by satisfying retributive is nothing but
concept of vengeance is superficial.
Merits
1. The theory is very simple. Punishment is an end in itself but Utility theory
is means
parameters
theory.

to

an

end. Therefore,

utilitarian

theories

are

evaluated

on

of success and failure. This question does not arise in retributive

2. Retributive

punishment

is neither cruel nor barbaric

but

civilized

because

inflected punishment is proportionate to the crime that is just. Utility theory

recommends more punishment than the profit of crime.
3. Retributive is impartial and neutral. By inflecting proportionate punishment to the
crime, it considers the interest of wrongdoer and society equal. Reformative
theory gives more weight to interest of criminal and deterrent theory priority
would be social interest than criminal.
4. Retributive is based on the Roman doctrine of Poena sous teneredebet actors et
non

alios means

punishment

belongs

to

the

guilty,

and

not

others.

It

punishes voluntary acts and excludes involuntary acts based on less blame worthy
acts like, act
punishment

of

insane

person

or

immature

person.

Utilitarian

demands

for every kind wrongful act either intended or unintended. So

innocents are likely to be punished which is harsh.

5. Retributist always treat the human being with dignity and honor by saying that
the punishment is an end in itself not means to an end. However utilitarian treat the
person either as a commodity or animal because his punishment used as means to
teach lessons to others to prevent crimes, which degrades the human value.
6. Hallmark of retributive theory lies in its nature of mercy. Once criminal pays his
debt to the society in the form of punishment, his sin is expiated and admitted
back to mainstream of society again. This kind

of philosophy is missing

in the

deterrent punishment.
Demerits:
1. Retributisthave failed to elaborate any guidelines or principles for proportionate
punishment that makes difficult task for judges to measure punishment for crimes.
2. Object of punishment is not only punishing the criminal but to prevent the crime
in future also.Punishment is means to an end not an end itself.
3. Kant philosophy of murder warrants death sentences as not acceptable to
the Modern civilized society.
REFORMATION

The

theory

of

reformation

strruggle

to transform all offenders into

peaceful, productive and capable citizens of society. Reformation expect that

offenders are capable of change, and once the reasons for the commission of the
crime are removed, they can lead ordinary and fulfilling lives.While it is clear that
when a person is sentenced to death, the ideal of reformation has clearly lost
priority

in

sentencing,

discussions

its

of reformation have often been(and

indeed, are required to be) a part of death penalty adjudication. This is

because reformation is a central normative commitment of our criminal justice
system, and because only those offenders who are adjudged beyond reform, and
proven to be so, through conclusive evidence adduced by the prosecution, can
ever be sentenced to death.
The reformation ideal has similarly been articulated by the Supreme Court in
other cases.369 In this
made

this

reformatory

background
aspect

came Bachan Singh which emphatically

part

of death penalty adjudication while

evolving the rarest of rare case test.The objections against reformation theory.
1. Reformative theory regard better infrastructure and facilities in prison, proper
co-ordination between different discipline and insistent effort on their part to
form criminal. It requires huge investments which poor country cannot afford it.
2. Millions of innocent people who have high regards for law are finding
difficult to get basic facilities

suggest ethical justification for providing

better

facilities inside prison.

3. The rationality of the theory is more towards incentives for the commission
of crime rather than prevention.
4. Reformation can work out on those people who can be reformed, there are people
who cannot be reformed like hardcore criminal, highly educated and professional
criminals.
. 5. This theory neglects potential offenders and persons who have committed
crime but not within the arms of law. Further, it overlooks the claims of
victims of crimes.

6. Corrupt social environmental is responsible for crime but not individual

responsibility, is the philosophy of reformative which is hard to digest
The reformative theory is utterly failure.The uneducated and unskilled prisoners
have developed their skills in prison.The criminals are transformed in to ahighly
useful persons.

Benthams utilitarianperpestivesof

punishment. He believe in ideas of pain and

pleasure as the main concept of humans life. He thinks human reaching their
happiness by getting more pleasures and avoiding all pains. So he states that
pleasures and pains are instruments ,he has to work with.erspective on punishment.
He believe in a law as organized of humans life. Bentham, all punishment is itself a
pain and harm, but it can only be justified, if this particular pain would reduction
other pain or increase pleaser. In other words, Bentham with the idea of punishment
as long as it increase innocent peoples pleasures .Bentham considers the
punishment from doing things which would produce more pain such as rape, theft,
or murder is justified as long as people are deterred by this punishment. Even
though Bentham believe in that disagree with death penalty.Bentham believe in
self- compulsory self-incrimination and wanted to revive torture, he sees the death
penalty is not suitable punishment. Because person who provide any person with
pain by doing unjustified, crimes like murder or rape, does not deserve to be killed.
The killing in this case would be pleasure for this person more than pain. So
Bentham think keep him alive and use different type of punishment what should be
done in order to punish him.
Beccaria argues that Punishment should be swift since this has the greatest
deterrence value. He defends his view about the swiftness of punishment by
appealing to the theory of the association of ideas. For Beccaria when a punishment
quickly follows a crime, then the two ideas of "crime" and "punishment" will be
more quickly associated in a person's mind. Also, the link between a crime and a
punishment is stronger if the punishment is somehow related to the crime. Analyse
that the swiftness of punishment has the greatest impact on deterring others,
Beccaria argues that there is no justification for severe punishments. In time we will
naturally grow accustomed to increases in severity of punishment, and, thus, the

initial increase in severity will lose its effect. There are limits both to how much pain
we can experience, and also how much we can impose. His position is that capital
punishment is not necessary to deter

and long term imprisonment is a more

powerful deterrent , since execution is temporary. Beccaria argues that perpetual

slavery is a more effective deterrent than capital punishment and death penalty in
fact has bad effects on society by reducing their sensitivity to human suffering.