Theories of Punishment and Secondary functions of the Court | Jurisprudence - CLAT PG PDF Download

Theories of Punishment

Deterrent Theory

• The term 'Deter' means to abstain from doing an act. This theory aims to deter criminals from committing crimes or repeating them in the future.
• Severe punishments are imposed on offenders to discourage them and serve as a lesson to others in society.
• Salmond emphasizes that punishment is primarily deterrent, making the offender an example and warning to others.
• According to Manu from ancient India, punishment is a source of righteousness as it prevents wrongful acts through the fear of punishment.

Retributive Theory

• Based on the principle of 'An eye for an eye,' this theory aims to make the criminal experience the same suffering they inflicted on the victim.
• Salmond states that punishment is a debt owed to the law, and the penalty for wrongdoing is a debt owed to the victim.
• This theory has been criticized for promoting revenge rather than welfare and transformation.
• It is seen as a societal prompt for victims, but not a justifiable theory.

Preventive Theory

• Founded on the idea of preventing future crimes by incapacitating the offender through methods like imprisonment or death penalty.
• Paton describes it as disabling the offender to prevent future crimes.
• Critics, including Kant, argue that mere imprisonment does not reduce crime without reformative efforts to reintegrate the offender into society.

Expiatory Theory

• Focuses on morality rather than legal concepts, emphasizing ancient religious beliefs about crime and punishment.
• Prisoners were isolated to repent for their crimes, and those who succeeded were released.
• Due to its ethical basis, this theory has lost relevance in modern punishment systems.

Reformative Theory

• Emphasizes the reformation of offenders through individualization, based on the principle that offenders are still human and can be reformed.
• The goal is to restore the offender as a good and law-abiding citizen.
• The Supreme Court, in T. K. Gopal v. State of Karnataka, supports the idea of punishing criminals while also focusing on their reform and basic rights.

Proceedings Before a Court of Law

• Proceedings before a court of law can be either penal or remedial.
• In penal proceedings, the law aims to secure the punishment of the defendant.
• Remedial proceedings, on the other hand, do not involve the idea of punishment at all.
• Criminal proceedings are always penal, but there are civil proceedings that can be either penal or remedial.

Primary Functions of Courts of Law

• The primary functions of a court of law involve the administration of justice, which means applying the rules of justice through the use of physical force by the State.
• Justice is administered by enforcing rights and punishing wrongs. Each case typically involves two parties: a plaintiff and a defendant, or a prosecutor and an accused. The court makes a judgment in favor of one party or the other.

Secondary Functions of Courts of Law

• The secondary functions of courts involve activities that are primarily the responsibility of the State but are delegated to the courts for convenience.
• These functions are increasing in importance as civilization advances. Under English Law, as classified by Salmond, these secondary functions include four groups:
• Petition of Right: If an individual claims a debt or any other right against the State or raises a breach of contract action against the State, they can file a petition of right in court. The court will investigate the claim and issue a judgment according to the law. However, since the courts are part of the State, they cannot be compelled to act, and coercive force cannot be applied against the defendant.
• Declaration of Right: A litigant may seek the assistance of a court not only to enforce a right but also to declare the existence of such a right. This is necessary when rights are uncertain, even if not violated. Examples include declarations of legitimacy or nullity of marriage.
• Administration: This involves cases where the court manages and distributes property, such as through the administration of trusts, liquidation of companies, or distribution of an insolvent's estate.
• Titles of Right: Judicial decrees may create, extinguish, or transfer rights, such as divorce decrees or adjudications of insolvency. In these cases, the judgment does not remedy a wrong but establishes a right.