IS DETERRENCE SUCCESSFUL AS AN IDEOLOGY FOR PUNISHMENT?

The result of any crime is punishment. The primary purpose of punishment is to reform criminals
and turn them into good-hearted people and make them law-abiding citizens.

The deterrent theory of punishment is utilitarian in nature. The aim of this theory is that this person
is punished not only because he has committed an illegal act but also to ensure that no crime will
be committed again. By making potential criminals aware that crime is not worthwhile, the
deterrent theory hopes to control the crime rate in society.

It is best expressed in the word of Burnett, J who said to a prisoner:

“Thou art to be hanged not for having stolen a horse, but in order that other horses may not
be stolen”.1

The term ‘deterrent’ has many meanings. Deterrent can be understood as discouragement, which
attempts to stop evil minds from taking wrong and illegal paths. To deter is to “refrain from acting
or doing.” Deterrent is “the imposition of harsh punishments to deter the offender from repeating
the offense.”

In other words, “Deterrence is the use of punishment to prevent the offender from repeating his
offense and to demonstrate to other potential offenders what will happen to them if they follow the
wrongdoer’s example.”2 It is notable that the deterrence is used in two senses: first, punishment of
an offender will deter others from committing the crime for which s/he was convicted; second, it
will deter the person found guilty of an offence from committing further crimes.3

Out of the five doctrines of criminal jurisprudence, that is, deterrent, retaliation, prevention,
reformation, and expiatory theories; this theory establishes the dire consequences, i.e., punitive
actions against the wrongdoer to curb the menace. Such actions also deter criminals from
committing the crime the next time.

According to J. Bentham, who is known as the founder of this theory, a hedonistic conception of
man and that man as such would be deterred from crime if punishment were applied swiftly,
certainly, and severely.
But being aware that punishment is an evil, he says, if the evil of punishment exceeds the evil of
the offence, the punishment will be unprofitable; he would have purchased exemption from one

1
Burnett, J. D. M., & Nigam, R. C. (1966). Law of crimes in India. Vol. I. principles of criminal law. Pacific Affairs,
39(1/2), 203.
2
Joel Meyer, “Reflections on Some Theories of Punishment”, 59 J. Crim. L. Criminology & Police Sci. 595,
596(1968)
3
Ibid.1

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evil at the expense of another. Through making the potential criminals realize that it doesn’t pay
to commit a crime, the deterrent theory hopes to control the crime rate in the society.

Bentham treats the committed offences as an act of past, that should be used as an opportunity of
punishing the offenders in such a way that the future offences could be prevented.

The object of punishment, according to this theory, is to show that, in the final analysis, crime is
never profitable to the offender, and as Locke observed, to make a crime “an ill-bargain to the
offender.” By making it an ill-bargain to the offender, the world at large would learn that crime is
a costly way of achieving an end.
Similarly, the State seeks to create fear in its members, and thus deter them from committing a
crime through fear psychology. The human rights activists, who protest against capital punishment
argue that the crime of murder is punishable with a death penalty, but it is not enough to deter a
person from committing crimes.

Beccaria famously said:4The purpose of punishment is none other than to prevent the criminal
from doing fresh harm to fellow citizens and to deter others from doing the same. Therefore,
punishments and the method of inflicting them must be chosen such that, in keeping with
proportionality, they will make the most efficacious and lasting impression on the minds of men
with the least torment to the body of the condemned.

According to Norton, “The purpose of punishment being something other than total retaliation,
Beccaria concerned himself with the limits and consistency of punishment. The amount of
punishment, he felt, should be defined by the legislature, and the courts left without discretion.
Further, the legislature should determine this according to two factors: the destructiveness of the
crime to public safety and happiness, and the inherent inducements present in the crime.”5

According to John Ball, the deterrent effect of a particular type of punishment depends upon the
following factors.

➢ The social structure and value system under consideration;

➢ The particular population in question;
➢ The type of law being upheld;
➢ The form and magnitude of the prescribed penalty;
➢ The certainty of apprehension and punishment; and
➢ The individual’s knowledge of the law as well as the prescribed punishment, and his
definition of the situation relative to these factors.

This theory was the foundation of punishment in England in medieval times. In India also, Manu,
the immense Hindu law-giver, has said that penalty keeps the folks under control, penalty protects

4
Beccaria, C., Davies, R., & Cox, V. (Eds.). (1995). On Crimes and Punishments and Other Writings 26.
5
Jerry E. Norton, “The Punishment Debate” 44 Chi.-Kent L. Rev. 85 (1967)

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them, penalty remains awake when individuals are asleep, so the wise have regarded punishment
as basis of righteousness.

In the Hobbesian view, people generally pursue their self-interests, such as material gain, personal
safety and social reputation and make enemies, not caring if they harm others in the process. Since
people are determined to achieve their self-interests, the result is often conflict and resistance
without a fitting Government to maintain safety.

To avoid, people agree to give up their egocentricity as long as everyone does the same thing,
approximately. This is termed as “Social Contract”.
According to this social contract, he stated that individuals are punished for violating the social
contract and deterrence is the reason for it to maintain the agreement between the State and the
people, in the form of a social contract workable.

This theory contends that the goal of punishment is to make the perpetrator a deterrent to future
wrongdoers and a role model for those with criminal tendencies.

According to Salmond 6, criminal justice’s deterrent components are crucial for crime control. In
England throughout the Middle Ages, the punishment was based on the deterrence idea. Even for
small infractions like pickpocketing and theft, severe and inhumane penalties were the standard
practice.

In 2013, an article by Daniel S. Nagin, “Deterrence in the Twenty-First Century,” very vividly
explains some of the main points of deterrent theory, which can be summarized as the fear of being
caught is far worse than severe punishment. When the justice system has shown the power to catch
criminals, this alone can become a dreadful psychosis in the hearts of other criminals. Strategies
used by police officers, such as sentinels and hotspot policing, are really effective in overcoming
the threat. The behavior of criminals is more likely to be affected if they see uniformed police with
handcuffs and guns rather than the strict penal provisions on paper. 7

It can be seen that the punishment of the death penalty has not been very effective in deterring
society’s most heinous crimes over the years. In the face of the increasing number of rape cases
over the past few decades, it is very frustrating that crime has not been completely stopped.
Some socially rational thinkers might argue that crime has been stopped to some extent.

However, in a civilized society like ours, where we talk about internationalism, social networks at
our fingertips, and advances in modern high-tech science and whatnot, will there be a place for a
crime where the very basic rights of human existence are denied to the better half of society? The
continuous worry about the increased rate of crimes disallows a fearless living to the weaker (yet
stronger) sex of the society.

6
Salmond, Jurisprudence (n.d.)
7
Nagin, D. S. (2013). Deterrence in the Twenty-First Century. Crime and Justice, 42(1), 199–263.

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There is no end to this, but the legal system is incessantly improving its laws, policies, procedures,
and interpretations to curb crime and make our society more civilized and decent. After all, it is
only when society is civilized then the laws on humans will reflect.

In conclusion, economic models of deterrents suggest that most crimes are committed by rational
people who consider whether the crime is worth the risk of possible punishment.

The theory holds that more people will commit crimes without the threat of punishment. Scholars
argue that increasing criminal certainty is more effective than increasing penalties for
transgressions.
Therefore, deterrent theorists argue that if punishment is severe, certain, and prompt, a rational
person will weigh the pros and cons before committing a crime. Due to this, the person will be
deterred from committing a crime and violating a law.

The Supreme Court in State of Karnataka v. Sharanappa Basanagouda Aregoudar (2002) 8

rightly stated that:
9
“The sentence imposed by the court should act as a deterrent on potential offenders and should be
commensurate with the seriousness of the crime. Of course, when it comes to sentencing, courts
have the discretion to assess a broad and diverse range of facts that may be relevant for fixing the
quantum of sentence, but that discretion must be exercised with due regard to the wider interests
of society, and needless to say, passing of sentence is probably the most public face of the criminal
justice system. Courts have been reminded of the need to have punishments having a deterrent
effect, especially for certain categories of crimes.”

For example, in the case relating to Section 364A, the Supreme Court ruled that in cases involving
kidnapping for ransom, “although kidnapping did not result in the victim’s death, the crime
required a deterrent punishment. Given the kidnapping of young children for ransom, the
legislature, in its wisdom, provided for stringent sentences.” 10

The Court further added that “whoever kidnaps or abducts young children for ransom, no leniency
be shown in awarding sentence, on the other hand, it must be dealt with in the harshest possible
manner and an obligation rest on the courts as well.”11 Protection of society and deterring the
criminal is the avowed object of law and that is required to be achieved by imposing an appropriate
sentence. The sentencing courts are expected to consider all relevant facts and circumstances
bearing on the question of sentence and proceed to impose a sentence, commensurate with the
gravity of the offence.12

8
(2002) 3 SCC 738: 2002 SCC (Cri) 704
9
Id. At 741
10
Akram Khan v. State of W.B., (2012) 1 SCC 406 at 413
11
Ibid
12
State of Karnataka v. Krishnappa, 2000 SCC (Cri) 755 at 83.

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On the other hand, action must be taken as harshly as possible, and the courts are obliged.
Protecting society and deterring perpetrators are the express goals of the law and must be addressed
by imposing appropriate penalties.

The court, at first instance, shall consider all relevant facts and circumstances affecting the
sentencing and proceed to impose a sentence according to the seriousness of the offence.

There is no denying that “punishments should be made according to the gravity of the crime,” as
the Supreme Court observed in State of M.P v. Bala@ Balram (2005)13. Such an approach is
important to establish that a civilized society does not revert to the days of “eye for an eye and
tooth for a tooth.” The lack of just punishment may prompt victims or their loved ones to seek
retaliation, and that is exactly what is being sought to be prevented by the criminal justice system
we have adopted. This philosophy is embedded in our law and jurisprudence, and it is the duty of
the judiciary to take this into account, the court recalled.

The Supreme Court has repeatedly stated that the sentence must be commensurate with the crime
and that it is the court’s responsibility to impose an appropriate sentence based on the extent of the
crime and the desirability of imposing such punishment.

For example, in State of Madhya Pradesh v. Munna Choubey & Anr. (2005)14, the Supreme
Court found that imposing sentences without regard to their impact on social order may actually
be futile in many cases.

The social impact of crime, such as crimes against women, fraud, kidnapping, embezzlement of
public funds, treason, and other crimes of moral corruption, or crimes that have a major impact on
social order and public interests, cannot be ignored, and per se require exemplary treatment.

Any stance that imposes meagre penalties or over-benevolent view because of a lapse of time in
respect of such offences will be counterproductive in the long run and against societal interests
that need to be cared for and strengthened by a string of deterrents inbuilt in the sentencing system.

THE SOCIAL DIMENSION IN RELATION TO DETERRENT THEORY IN INDIA

According to the deterrent theory, people are punished with the view of conveying a ‘message’ to
the rest of society that “it is wrong to act in certain ways, and if a person behaves in one of these
ways and does not obey the law, society will punish him/her accordingly. The manifestation of
social disapproval is punishment.”15

It is believed that conveying the message ‘creates a conscious and unconscious suppression of
criminal behavior.’16

13
AIR 2005 SC 3567
14
AIR 2005 SC 682
15
Kevin C. Kennedy, “A Critical Appraisal of Criminal Deterrence Theory”, 88 Dick. L. Rev. 1, 3 (1983-1984).
16
Andenaes, General Prevention: Illusion or Reality? 43 J. Crim. L.. Criminology & Police Sci. 176, 179 (1952)

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In the long run, this has led to the widespread perception of ‘habitual obedience’ at large to the
laws that prescribe certain acts by way of meting out punishments. However, many people argue
that it is debatable how far punishment acts as a deterrent among the people in any given society.

For instance, in Shashi Nayar v. Union of India and Ors (1991)17, one of the arguments put forth
against the death penalty because it violates Article 21 of the Indian Constitution, the death penalty
does not serve a social purpose, and the barbaric penalty of death should not be given to anyone
because it has no deterrent effect. It has been argued that the growing number of cases, despite
strict criminal law provisions, indicates the failure of the deterrent theory. 18
In short, it may be said That:19Deterrence theory is immoral because it treats individuals as means
rather than as ends. Additionally, the theory relies on mass obedience. This reliance is contrary to
the historical flow of civilization and democracy, which has been moving away From strong central
governments, coercive force and tyranny.

Deterrence theory’s reliance on mass obedience, therefore, is a serious political threat to the
citizenry of any free nation in which deterrence theorists influence the decision-making process.

In the current distress of despair and chaos, if deterrent punishments are not restored, the country
will be in chaos, and criminals will be released, endangering the lives of thousands of innocent
people across the country. Despite all the resources at its command, it will be difficult for the state
to protect or safeguard the life and liberty of all citizens if criminals are let loose, and deterrent
punishment is either removed or mitigated.

As a result, there is disagreement about the necessity and effectiveness of the theory. However, in
the primacy of punishment in legal thought, the goal remains the protection of society, and other
goals are often secondary in nature when sentences are being decided.

DRAWBACKS OF DETERRENT THEORY

The deterrent theory failed because the victims in cases of murder, rape, etc., were helpless and
the accused were not reported. Deterrent theory can only deter those who are not determined
enough to act on their beliefs. Despite all kinds of deterrents, criminal minds still act on a whim at
times. Penalties and sanctions have simply become mere obstacles that criminals have to
overcome. This is clearly not what the Indian criminal justice system needs. Despite the harsh
penalties and fines, the number of criminal cases has been increasing.

Some major drawbacks are:

➢ Punishment does not create fear in the criminal’s mind once the punishment is over.
➢ This type of punishment does not create fear in the hardened offenders’ minds.

17
AIR 1992 SC 395
18
Yug Mohit Chaudhry, “Hanging on Theories”, Frontline (Aug 25-Sept 07, 2012).
19
(2012) 1 SCC 406 at 10

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A major limitation of the theory is that it promotes the treatment of a person as a means in order
to benefit others. Its aim is only to prevent crimes, it does not matter if the punished is actually
guilty or not.

There is a lot of criticism of the deterrent theory of punishment in modern times. It has been
criticized on the grounds that it has proved ineffective in checking crimes and also that excessive
harshness of punishment tends to defeat its own purpose by arousing the sympathy of the public
towards those who are given cruel and inhuman punishment.

Hardened criminals are not afraid of punishment. Punishment losses its horror once the criminal
is punished.

The deterrent theory also fails to affect an ordinary criminal, as very often, a crime is committed
in a moment of excitement. If the crime is pre-mediated, the offender commits the crime, knowing
fully well, the consequences arising from his act and performs the act because he cannot help but
do it.

Example of failure of the deterrent theory of punishment: rape cases continued to rise after the
Nirbhaya verdict in Mukesh & Anr v. State For Nct Of Delhi & Onr (2017) 20.

According to the deterrent theory, the main goal is ‘to deter crime by inciting fear or setting an
example for society. Now, the death penalty is a severe punishment. In the Nirbhaya case, the court
sentenced four criminals to death for gang rape. Although this is a good example for future
criminals who would consider committing crimes such as rape in the future. So, according to this
theory, crimes like rape should not have happened after the Nirbhaya verdict. But they are still
happening. Rape cases in our society are increasing every day.

The Nirbhaya gang-rape judgment was seen as justice for ‘India’s daughter,’ even though the
decision came after several years. But it seems to go further, as rapes continue unabated, more
specifically from early 2020 to 2022. So, we can simply see that even harsh punishment does not
improve anything. ‘The death penalty doesn’t stop rape’ – that’s the real message we get.
In Phul Singh Vs State of Haryana, (1980 Cri. L. J. 8) 21 , a young philanderer aged 22,
overpowered by excess sex stress, raped a twenty-four-year-old girl next door in broad day-light.
The Sessions Court convicted him to four years’ rigorous imprisonment, and the High Court
confirmed the sentence in appeal.

When the matter went in appeal to the Supreme Court, the sentence was reduced to two years’
rigorous imprisonment, as the accused was not a habitual offender, and had no vicious antecedents.

20
AIR 2017 SC 2161, AIR 2017 SC (CRIMINAL) 899
21
1980 Cri. L. J. 8

7
The Supreme Court observed: “The incriminating company of lifers and others for long may be
counter-productive, and in this perspective, we blend deterrence with correction and reduce the
sentence to rigorous imprisonment for two years,”

In Ballo alias Balveer v. State of Rajasthan (Criminal appeal no. 924/2013) 22 the High Court
observed that a sentence or pattern of a sentence which fails to take due account of the gravity of
the offence can seriously undermine the respect for the law. The sentence should not be too lenient
or disproportionately severe. If the sentence is lenient, it will be a temptation for the criminals to
commit more crimes and if the punishment is too harsh it won’t, remain a deterring factor.
Therefore, this theory was meant for a good motto to deter crime, but considering today’s situation,
it is a major failure, because the aim is not fulfilled to deter crime, as day by day there is always a
hike in the criminal cases, even punishing the criminal is actually not restricting the general public
not to commit crimes instead of that the we have witnessed high recidivism rates.

This theory even actually treats criminal as outsiders and considering them as a means, to achieve
social ends. Thus, focus should not only be on deterring the society but at the same time giving
chance to reform the criminals, which may reduce the recidivism rate as it is seen that severity of
punishment seems to be inefficient there.

And taking it forward celerity should be there in justice “As justice delayed is justice denied”,
people should be discouraged if there is a certainty of being caught and punished, there is a speedy
punishment for the crime committed which will be justice to the victim and criminals would be
paying for their illicit activities with severe punishment for heinous crime, so that reasonableness
will exist and there is no injustice against offenders.

In conclusion the basic premise of Deterrence theory of punishment is that punishment should be
such that it deters the criminal from committing the crime he/she has been convicted for, and more
than that, the punishment so inflicted deters others from committing such crimes. One of the
criticisms against deterrence theory is that it treats individuals as means rather than as ends. This
theory is successful in creating mass discipline in the public at large but fails to deter hardened and
psychologically challenged criminals as well reduce crime rates in the society.

22
2013 (16) SCC 321

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 REFERENCES

1. Tiwari, P. (2022). Concept of deterrent theory. In International Journal of Law Management

& Humanities, International Journal of Law Management & Humanities (Vol. 5, Issue 4,
pp. 862–868).

2. More, A. H. (2023, April 15). Deterrent theory of punishment. The Legal Quotient.

3. Theories of punishment in India in context with types of punishment. (n.d.). Finology.

4. Kumar, B. (2016). CRIME AND THEORIES OF PUNISHMENT.

5. Garg, R. (2022, September 6). Deterrent theory of punishment – iPleaders.