PUNISHMENTS: – DETTERENT AND PREVENTIVE 

Written by- Mohd. Shaan, student of Fairfield Institute of Management & Technology (affiliated to GGSIPU) 

Abstract  

Deterrent and Preventive punishments are essential for both domestic and international laws to ensure that law and order would not disturb. Deterrent punishment creates a fear of severe consequences in the mind of the offenders and discourage individuals and society from doing the same in future. And on the other hand, preventive punishments seek to eliminate the opportunity for crime by neutralizing potential criminals. A balanced criminal system ensures that both the aspects of the punishments are there to reduce crime effectively while ensuring human rights of the individuals are not violated.  

Keywords– Preventive Punishments, Deterrent Punishments, Human right, Legal system, international laws.    

Introduction 

Punishment serves as a cornerstone of legal systems and a crucial mechanism of social control, designed to maintain order and uphold justice within society. It encompasses various objectives, including deterring potential offenders, incapacitating individuals who pose a threat to public safety, rehabilitating wrongdoers to reintegrate them into society as law-abiding citizens, and seeking retribution for the harm caused by criminal acts. The concept of punishment has undergone substantial evolution over centuries, influenced by shifting societal norms, emerging legal philosophies, and growing awareness of human rights. 

In earlier civilizations, punitive measures were often harsh, focusing primarily on retribution and deterrence through severe physical punishments, exile, or even capital punishment. Over time, as legal systems developed and societies became more structured, the focus expanded to include principles of proportionality, fairness, and the possibility of reforming offenders. The Enlightenment era introduced ideas of rational punishment, advocating for penalties that corresponded to the severity of the crime rather than arbitrary or excessively harsh retribution. 

Modern legal frameworks now emphasize a more balanced approach, incorporating elements of restorative justice, which seeks to heal the harm caused by crime by involving victims, offenders, and communities in the resolution process. Human rights considerations have further shaped the discourse on punishment, leading to the abolition of inhumane practices, the push for rehabilitative measures, and the establishment of alternatives to incarceration, such as community service or probation. 

Despite these advancements, the debate on the effectiveness and morality of different forms of punishment continues, with ongoing discussions on the role of capital punishment, the ethics of long-term imprisonment, and the need for more humane and effective correctional policies. Ultimately, the evolution of punishment reflects broader societal values, legal advancements, and the continuous effort to balance justice, deterrence, and rehabilitation in a fair and humane manner. 

Meaning and purpose of punishment  

Punishment is the imposition of a penalty on wrongdoer who violates the rules, laws or moral codes established in a country. It fulfills multiple purposes: –  

1. Retribution- Based on the principle of “an eye for an eye,” it aims to inflict suffering on the offender proportionate to their crime which he committed.  

2. Deterrence- It aims to discourage the individuals from committing crimes.  

3. Rehabilitation- It focuses on reforming the wrongdoer to reintegrate themselves into society as law-abiding citizen.  

4. Restorative Justice- Seeks to repair the harm caused to the victim by the act the wrongdoer.  

Among these deterrent and preventive punishments plays a crucial role in discouraging crime and ensuring public safety.  

Historical evolution of punishment 

1. Ancient civilizations- Code of Hammurabi (c. 1754 BCE)- It is one of the earliest known legal codes from Mesopotamian civilization, prescribing harsh, often retributive punishments. 

2. Ancient Egyptian Law- Relied on harsh punishments, including physical punishment or even exile, and considered to be justified by divine authority.  

3. Ancient Greece and Rome- Implemented a mix of fines, corporal punishments and death penalties.  

Medieval and Feudal Periods  

1. Feudal Europe- To deter crime European practice punishments like torture, public execution often carried out in a brutal and public manner.  

2. Religious Influence- It includes punishments for blasphemy and heresy, including excommunication and execution. 

Early Modern Period (16^th – 18^th Century) 

1. Rise of Legal Rationality- Philosophers like Cesare Beccaria in his book “On Crimes and Punishments, 1764) argued that there should be abolition of the torture and the punishment which is given to him should be proportionate. 

2. Development of Prisons- The idea of long-term imprisonment as an alternative to corporeal punishments start emerging. 

19^th and 20^th Century Reforms 

1. Industrialization and human rights movements- This phase helps in reducing the capital punishments, abolished the slavery and improves in prison condition.  

2. Introduction of Rehabilitation- The studies like psychology and sociology give more importance to penal reforms, which leads to parole, probation, and correctional programs.  

Contemporary Punishments Systems 

1. Abolition of Capital Punishments- Many countries have abolished the death penalty and give more importance to life imprisonment. 

2. Alternative Sentencing- Alternative sentencing is something which focus on assigning tasks like community service, electronic monitoring, and restorative justice programs rather to give punishments.  

3. Human Rights Considerations- International bodies like United Nation emphasize humane treatment of prisoners in the jail and ensures that the human rights of the prisoners are not violated except those which are restricted by law itself because of there act of crime.  

Deterrent Punishments  

Meaning and Concept 

Deterrent punishment aims to discourage individuals and society at large from committing crimes. It is based on the concept that there should be a fear of severe consequences that will prevent person to commit crime and this punishment serves both individual as well as general public at large – 

1. Individual Deterrence- It prohibits a particular offender from repeating the crime by imposing fine or imprisonment according to the crime which he committed.  

2. General Deterrence- It conveys a message in the society that certain offences will be met with strict ad harsh punishments.   

Jeremy Benthem (English philosopher & very renowned jurist) was the founder of deterrent theory and the theory found its base from the principle of hedonism which explains that a man would be deterred before committing a crime if the punishment applied on that was swift, certain and severe.  

The main aim of this theory is to create a fear in the mind of an individual or public at large that if they do any of the criminal activity or repeat the same offence in future the have to face dire consequences for the same. It creates fear of punishments in like-mind people.  

The punishment which is given to the person who committed the crime should in proportion to the crime which he committed. There reasonable nexus should be there between the crime committed and the punishment inflicted for the same.  

While deciding punishment for a particular crime one has to scrutinize the following elements- 

1. The seriousness of the crime- The punishment should be in proportion to the seriousness of the crime committed.  

2. Impact on the general public- It is the most important element to take into consideration that what will be the effect of that punishment in the mind of general public because the ultimate goal of giving punishment is to ensure that crime will not be committed in future by anyone else or the person who did it.       

Criticism of deterrence theory 

Even though this theory creates a fear in the society at large to not to commit crime in future, on the other hand it failed to checking crimes and if we give excessive harsh punishments to the wrongdoer the there is a chance of that public give sympathy to those who are subjected to such punishments. And sometimes the excessive harshness in the punishment will violate the individual’s basic human rights.  

And punishment loses its sole and spirit once criminal is punished. Like if we talk about Indian laws so for committing rape it gives imprisonment for ten years or which may extend to life imprisonment and in certain exceptional cases it will be the death penalty which we saw in Nirbhaya Case, Offenders are punished for the act which they did but what happened after that, is rape completely terminated? The answer is no, there is no change in the scenario and we have much more cases. Thus, the question arises whether this theory serves its purpose or not. It does not give a chance to reform the accused and in certain cases we see that the offender after completing his punishment did the same offence when he released from the jail. 

Recently in the case of Aslam Salim Sheikh vs. State of Maharashtra (2023), the Bombay High Court ordered the release of 30 years old man convicted for 41 theft cases and sentenced to over 83 years in prison. Court emphasized that the main aim of the sentencing the wrongdoer is to establish deterrence and reformation and excessive sentence would lead to injustice.  

Preventive Theory                                                                       

Meaning and concept 

Preventive theory aims to stop crimes before they occur and not to take the revenge for the same. This theory is also well known as disablement theory. The theory talks about eliminating the offender from the society to prevent the chain of the crime. By this society will protect themselves against these offenders.  

Theoretical Basis 

The preventive approach is based in the idea that removing potential offenders from society or restrict his action will reduce crime. This theory is often associated with the positivist school of criminology which explains that measures should be taken instead of punishment.  

Forms of Preventive Punishment  

1. Imprisonment- Long term detention of habitual offenders prevents them from committing further crimes.  

2. Preventive Detention- Suspects or dangerous individuals can be detained without trial under certain laws.  

3. Restraining orders and probation- Courts can impose certain individual to prevent crime in the society, such as bans, curfew. 

Effectiveness– These types of the punishments are effective in dealing with habitual offenders, organized crime, and the threat which are given against national security.  

Criticism– It may harm Fundamental human rights, because this prevention detention should be given by the court itself.  

In the case of Sunil Batra v. Delhi Administration (1979), court observed that if the prisoner is violent or dangerous, then it is important that solitary confinement to prevent crime in future. 

Deterrent Punishments in International law 

Concept and application  

This punishment in international law seeks to demoralize nations, individuals, and groups from committing grave offenses by imposing harsh consequences. Applies to war crimes and crimes which are against humanity, genocide or any activities related to terrorism.  

Examples in International Law  

1. Death Penalty for war crimes:  

Some countries impose death penalty for war crimes and acts of terrorism, though the United Nation not supported to use it as a punishment.  

2. Economic and Political Sanctions:  

The United Nation, the European Union, and other international bodies impose economic sanctions for crimes which any individual or any countries committed.  

3. Criminal Prosecution at the International Criminal Court (ICC): 

The ICC prosecutes individuals responsible for genocide, war crimes etc. ensuring that the high-profile criminals are held accountable.  

4. Use of Military Force as a deterrent:  

In cases of severe human rights violation, international coalitions may intervene military to deter further atrocities like intervention in Libya and Syria.  

Effectiveness- It discourages future crimes and hold offenders accountable.  

Challenges- Some countries refuse to follow these international norms and political interest hinder the enforcement of it.  

Preventive Punishment in International law 

Concept and application 

Preventive punishment in international law aims to stop crime before the commission of the same by restricting individuals, organizations, etc.  

Example in International law: 

1. Preventive detention and surveillance 

Counterterrorism allows authorities to detain suspects without trial for extended periods.  

2. Travel Bans and Restrictions: 

The UN Security Council imposes travel bans on individual who are involve in the activities like terrorism, war crimes etc.  

3. Preemptive Military Action:  

Some countries take military actions against perceive threats before they materialized the best example was the US drone attacks and strikes against terrorist leaders.  

4. International Peacekeeping and monitoring 

Organizations like the UN peacekeeping forces and Interpol track and monitor criminal activities worldwide to prevent crimes which are increasing rapidly as the time gores.  

Effectiveness– It stops the crimes before the escalation and helps to reduce global instability.  

Criticism– Indefinite term of detention without trial leads to the violation of Human Rights.  

Conclusion 

Deterrent and preventive punishments are essential for maintaining law and order both domestically and internationally. Deterrent punishment discourages crime by imposing severe penalties, such as long-term imprisonment, heavy fines, or capital punishment, reinforcing societal norms through fear. Preventive punishment, on the other hand, aims to neutralize threats by restricting individuals likely to commit crimes through measures like imprisonment, travel bans, and surveillance. 

An effective criminal justice system balances both approaches—deterrence discourages offenses, while prevention mitigates risks. However, justice and human rights must be upheld to avoid excessive punishment or wrongful convictions. 

Internationally, bodies like the ICC and UN use deterrent measures such as war crime trials and sanctions, alongside preventive strategies like counterterrorism laws and surveillance. Effective enforcement, international cooperation, and respect for human rights are crucial to ensuring these measures serve justice without infringing on individual freedoms.     

References