JURISPRUDENCE- UNIT 1

JURISPRUDENCE

• Jurisprudence is like Legal thoughts.

• It tries to question some basic questions
surrounded by law:-
– What is Law?
– Why should it exist?
– What should be nature and purpose of law?
– What are rights and duties?
– What is ownership and possession?
• JEREMY BENTHAM is known as the father of
Jurisprudence.
• There is no uniform and universal definition.
• Jurisprudence is not a codified subject.
• “JEREMY BENTHAM” is the father of
Jurisprudence.
 SCOPE OF JURISPRUDENCE

Justice PB Mukherjee- Commenting on the scope

of Jurisprudence “Justice PB Mukherjee” observed
Jurisprudence both an intellectual and idealistic
abstraction as well as the behavioural study of man
in society. It includes political, social, economic and
culture ideas. It covers the study of man in relation
to society. The object of Jurisprudence is not to
discover new rules but to reflect in the rules
already known.
• Jurisprudence is the behavioral study of man in
society.
• The object of jurisprudence is not to discover
new rules, but to reflect on the rules already
known.
• John Austin became the 1st professor of
Jurisprudence and he tried to limit the scope of
jurisprudence.
 SIGNIFICANCE & UTILITY OF STUDYING
JURISPRUDENCE
• One of the task of this subject is to construct and
elucidate concept serving to render complexity of law
more manageable and more rational.
• Jurisprudence is eye of law and grammar of law as it
throws light on basic ideas and fundamental principles
of law.
• Jurisprudence shouldn’t be restricted to study of
positive laws that include normative study i.e. that
study should deal with improvement of law in the
content of prevailing socio-economic and political
philosophies of time, place and circumstances.
RELATION OF JURSPRUDENCE WITH OTHER
SOCIAL SCIENCES
• SOCIOLOGY & JURISPRUDENCE (Sociological
Jurisprudence):-
– Branch is based on social theories
– Essentially concerned with influence on law on
society.
• Jurisprudence & Psychology
– Thorough knowledge of human mind is used in
Criminological Jurisprudence.
• Jurisprudence & Ethics
– Ethics has been defined as science of human conduct.
It strives for ideal human behaviour
• Jurisprudence & Economics:-
– Both are sciences and both aim to regulate lives of
people. Both try to develop society and improve
life.
• Jurisprudence & Politics:-
– it lays what a man ay or may not do.
– Jurisprudence & History:-
• It studies past events.
• Development of law for administration of justice
becomes sound if we know history and background of
legislation that why law has evolved.
• This branch is known as Historical Jurisprudence.
 Definitions of Jurisprudence
• There is no universal or uniform definition of Jurisprudence since people
have different ideologies and notions throughout the world. It is a very vast
subject.
• According to Ulpian “Jurisprudence is the knowledge of things human and
divine, the science of the just and unjust.
• According to Prof. Gray: ‘Jurisprudence is the science of law, the statement
and systematic arrangement of the rules followed by the courts and the
principles involved in those rules.’
• According to Austin- “Jurisprudence is the philosophy of Positive Law .”
– ‘positive law’ i.e. the law as it is and not ought to be.. The term ‘positive law’ signify
‘jus positivism’ which means law laid down by a political superior
for commanding obedience from his subjects.
– Austin divides Jurisprudence into two classes:-
• General Jurisprudence- Philosophy of Positive Law
• Particular Jurisprudence- Is the science of any such system of Positive Law.
• According to Salmond:
A) In wider sense: Jurisprudence means the science of civil law,
• According to Holland: “Jurisprudence is the
formal science of positive law”
– Defined the term positive law
– Added the term ‘formal’ i.e. formal means to study
only the form and not the essence.
– Using formal science which means it describes only
the form or external sight and not its internal
contents.
– It deals more with the form and outer (but
fundamental) aspect, rather than with the matter and
contents of law. It concerns itself with basic ideas and
fundamental principles of various systems of law
rather than with laws themselves.
 SOURCES OF LAW
1. LEGISLATION
Legislation

Latin

Legis Latum
(it means Law) (to make or set)

– Legislation means the making of Law

– Best source of Law
– According to Salmond, supreme Legislation is Law made by Parliament
 Definition of Legislation by Different
Philosphers
• According to Salmond, “Legislation is that source of
law which consists in the declaration of legal rules
by a competent authority.”
• According to Austin, “Legislation is the command
of the sovereign or the superior authority which
must be followed by the common masses backed
by sanctions.”
• According to Gray, “Legislation implies the formal
expression of the administrative organs of the
general public.”
• Salmond gave three meaning to Legislation:-
– All methods of Law making eg- statutes, judge made
law
– Every expression of the will of Legislature whether
directed to law making or not. Ex- treaty with foreign
nation
– In strict sense: making of rules and laws to be
followed and enforced in courts of state.
 Legislation
(Kinds of Legislation as per Salmond)

Supreme Legislation Subordinate Legislation

- Proceeds for supreme - Colonial, executive,
legislative power autonomous, judicial, Incapable
of being replaced, municipal
annuled or controlled
by any other authority.
• Subordinate Legislation:-
– Executive: Law made by executives i.e. rules, orders, notification, by-laws, direction.
– Colonial: Power of self-government was entrusted to colonies.
– Municipal: Parliament gives power to municipal authorities to make special laws
called by-laws.
– Judicial Legislation- when courts make laws for regulation of their own procedure.
– Autonomous Legislation- universities, churches, corporations have power to make
rules for conduct of their business.
• Salmond said “Case Law is gold in the mine- a
few grains of the precious metal to the tons of
useless matter. While statute law is a coin of
the realm ready for immediate use. ”
2. Precedence
• Precedent means a behavior previously
adopted and it becomes an example or rule for
subsequent case
• Common Law Countries follow precedent-
England, USA, Canada, Australia, India
• Continental countries do not follow precedent-
france, Germany, Italy
• Stare Decisis
– It simply means “to stand by the decided matters” i.e., stick
to a decision.
– ‘Stare decisis’ is an acronym of the Latin phrase ‘stare
decisis et non quieta movere” ’which means “to stand by
decisions and not to disturb the already settled matters.”
Thus, it means to stick to one conclusion and not disrupt
settled things.
– The legal principle of stare decisis requires courts to follow
and respect precedents established by the court of higher
authority.
– The doctrine of stare decisis refers to the rule in which the
court would follow previous judicial decisions in future
instances. As a result, when the same questions or
arguments are addressed in later instances, the court will
follow the findings of previous cases.
• When decision contains a new principle then:-
– Its binding has persuasive value.
– This doctrine brings consistency, uniformity and
expediency.
 RATIO DECIDENDI
• Ratio decidendi is a Latin term that means ‘reason for
decision’ or ‘rationale for decision.’ The Ratio decidendi
is the point in a case where the judgment or principle
established by the case is determined. The Latin phrase
Ratio decidendi directly translates to “cause for
deciding.”
• It is the justification given for reaching a judgment in a
matter in the judicial context. Such a reason is not the
legislation that is attracting attention in the current
case, but rather a vital concept that aids the court in
reaching a certain conclusion. This element of the
precedent, not the general observations of the court,
must be adopted by the courts in subsequent
• Mohori Bibee v/s Dharmadas Ghose in this the
principle was laid down that contract wiith
minors is void ab initio
• Rylands vs Fletcher (principle of strict liability)
• State of Orissa and Others v. Mohd. Hiyas (2006)
In this case, it was held that the substance of a
decision is its ratio decidendi, rather than every
observation contained in the judgment. The
statement or the reason or principle on which a
court has resolved a case is sufficient to establish
a precedent.
 OBITER DICTUM
• Obiter dictum is a Latin word that means “said
in passing or other things mentioned,”
referring to a fleeting comment in a decision.
It is an English common law notion in which a
decision is made up of only two parts: ratio
decidendi and obiter dictum
• In the judicial context, ratio decidendi is
binding in terms of court precedent, whereas,
obiter dictum is simply persuasive.
• Obiter dicta are non-essential statements that
allude to hypothetical facts or unrelated legal
matters. Obiter dictum refers to a judge’s
words or views that, while contained in the
body of the case law, are not required to be
stated in the judgment.
• In the case of Sarwan Singh Lamba v. Union of India,
1995, the SC observed that in general circumstances,
even the obiter dictum mentioned in a decision of the
court is expected to be followed. Moreover, the
Supreme Court’s obiter dictum carries a considerable
weightage. But such weightage depends upon the kind
of dictum given by the court. If the dictum is a casual
remark by the court, it does have any effect on the
parties or the subsequent cases. In another scenario,
certain obiter dicta have recommendatory or
persuasive value but do not bind anyone. Hence, the
ratio decidendi is an important constituent of
judgment rather than obiter dicta.
• Judicial Precedent:-
• Circumstances where binding force of
precedent is destroyed:-
– Ignorance of statute
– Precedent sub silentio- point of law is not fully
argued
– Erroneous Decision- Decision on misconceived
principle of law.
– Abrogated Decision
 Position of Judicial Precedent in India
Pre- Constitutional
• Pre-Constitutional Law:-
• 1. 1813- Mr. Dorin- statutory force to precedents
• 2. Government of India Act, 1935- Section. 212 (Law
declared by the Privy Council and Federal Court will be
Binding)
Post- Constitutional
1950- Indian Constitution came into force and Art. 141
mentioned that law declared by SC to be binding on
all courts.
• Law Declared by Supreme Court will be binding
on All Courts?
– Whether all courts include SC?
– Bengal Immunity Co v State of Bihar, 1955- this case
mentioned that decisions of Supreme Court are
binding on subordinate courts but not on Supreme
Court itself.
– After the Golaknath decision shankari prasad and
sajjan singh case decision was overruled.
• Role of Judges is based on 2 theories:-
– Declaratory Theory
– Original Law Making Theory
• Declaratory Theory
– Only the Parliament Legislated and Judges only
expound of find the law.
– Exponents: Hale, Blackstone and Carter
• Original Law Making Theory
– Judges make law in the same sense in which the
legislature makes it. Judges declare the law and the
same time they make law.
– Exponents- Lord Bacon, Dicery, Gray, Salmond.
 Legislation Precedent
Source Will of State Decision pronounced by the Courts.

Creation Legislation is created by Legislature and Precedent is created by courts itself

courts are bound to follow them.

Existence Its made before case actually arises It came into existence only after the
case has arisen and brought before
court.

Publication is done before its application It comes into at once after its
pronouncement.

It is not difficult for public to know Its not easily known to public.
enacted laws.

Prospective Method Retrospective Effect

Deductive Method- General to Particular Inductive Method- Particular to
General
 CUSTOM
• Introduction
• -Oldest Source
• -Historical School Advocated
• Salmond- “Custom is to society what law is to state.”
• CUSTOM

Continuing by express approval fixes norm of

course of conduct of members of conduct of
community society
• Kinds of custom:-
– Non-Obligatory
• Court doesn’t recognize them
• If not followed-court won’t interfere
• Example- shaving of head.
– Obligatory
• Binding and enforceable by court of law
• Backed by sanction of state.
• It is of 2 types
– Legal custom- Local & General
– Conventional custom
• Legal custom
– It consists of custom which is operative per se as a binding rule of law,
independently of any agreement on the part of those subject to it. The legal
custom is one whose legal authority is absolute. It possesses the force of
law proporio vigore (of or by its own force independently.). The parties, affected
may agree to a legal custom or not but they are bound by the same. Legal customs
are of two kinds (1) local and (2) general. Local customs apply only to a locality and
a general custom applies to the whole country.
– Local custom
• Local custom is one which prevails in some definite locality and
constitutes a source of law for that place only. Every local custom
must satisfy certain conditions. It must be reasonable. It must conform
to the statue law. It must have been observed as obligatory. It must be
of immemorial antiquity.
– General custom
• A General custom is that custom which prevails throughout the
country and constitutes one of the sources of the law of the land.
There was a time when common law was considered to be the same
as the general custom of the realm followed from ancient times. There
is no unanimity of opinion on the point whether the general custom
must be immemorial or not.
• Conventional custom
– This custom operates only indirectly through the
medium of agreement, express or implied,
whereby it is accepted and adopted in individual
instances as conventional law between the
parties. A conventional custom is one whose
authority is conditional on its acceptance and
incorporation in the agreement between the
parties to be bound by it. A conventional custom
is an established practice, which is legally binding
because it had been expressly or impliedly
incorporated in a contract between the parties
concerned.
 Essentials of Valid Custom
• Antiquity: A custom to be recognized as law must be proved to be in
existence from time immemorial.
• Continuity: It must have been practised continuously. If a custom is
disturbed for a considerable time, a presumption arises against it
• Reasonableness : A custom must be reasonable. For declaring a
custom inapplicable on the ground of unreasonableness, it will have to
be shown that it is obviously opposed to reason.
• Conformity with statute law: A custom, to be valid, must be in
conformity with statute law. It is a positive rule in most of the legal
systems that a statute can abrogate a custom.
• Consistency: Custom must not come into conflict with the other
established customs. There must be set in opposition to the other
custom.
 Guru Swamy Raja v Perumal

• The plaintiff claimed the customary right of

easement for the shadow falling from the
branches of the tree hanging from the
neighbours field.
• It was held that there cannot be a custom
relating to shadows of tree because it is so
uncertain, ambiguous and transitory that it
cannot give rise to any customary.
LAW AND MORALITY
BACKGROUND OF LAW & MORALITY
• Austin said 4 things
– Command
– Sovereigns
– Sanction
– Obedience
 HART’s Theory of LAW
• Primary rules regulate the behavior of man in the society. These rules either grant rights or impose
obligations on the members of the society.
Example:- Rules of criminal law forbidding murder, robbery, rash driving are primary rules, tort
rules, the individual right to freedom of speech ,the provisions of contracts that define the primary
obligations of the parties, the environmental law rule that forbids discharge of toxic substances in
rivers and streams etc.

Secondary rules are those that stipulate how and by whom the primary rules may be formed,
recognized modified or extinguished.
Example: - Contract law rules that enable parties to form contracts, the rules that allow testators to
create a will, the constitutional rules that confer legislative powers on Congress, the statute that
authorizes the Supreme Court to promulgate rules of practice and procedure for the federal courts.

Hart's basic idea is quite simple.

• Primary rules are rules of conduct; they tell you what you are legally obligated to do (or refrain
from) and what consequences attach to obedience or disobedience. Thus, the criminal law rules that
prohibit theft, forbid certain conduct and provide for penalties for violating the prohibition.
• The class of secondary rules includes everything except primary rules.
• For example, secondary rules are legal rules that allow for the creation, extinction, and alteration of
secondary rules; secondary rules are power-conferring rules. Thus, contract law empowers
individuals and firms to make contracts; contracts themselves are usually collections of primary
rules. More precisely, primary rules are rules that govern conduct, and secondary rules are rules that
do not.
• Secondary rules are ones that let individuals, by doing certain things,
present new rules of the principal kind, or adjust them. They give
individuals (private people or public bodies) the ability to present or
change the main sort of rule. Secondary rules are not obligation forcing
rules. They are what Hart calls power-presenting rules. Auxiliary rules
are those rules which affirm powers like Contract, Marriage, Will,
Delegated Legislation ie. the ability to make law.
• Secondary rules are isolated into three types, these are as per the
following,
– Rule of Adjudication- Example: Article 32 – Supreme Court to give right writ;
Article 131, 132, 134, 133 – enable the Supreme Court the first and Appellate
purview; Article 323A and 323 B – courts to mediate the issue in question.
– Rule of Change: Example Article 368 – capacity of Parliament to change the
Constitution and system thereof; enables the revision of the Constitution.
– Rule of Recognition: This principle is the most crucial and vital principle of
secondary rules. It is that rule which recognize other rules. The rule of
recognition is the criterion of existence and validity of the rule of legal system.
 LAW AND MORALITY
• HART AND FULLER DEBATE
• Analytical School of Law vs Natural School of
Law
 DISTINTICTION BETWEEN LAW AND
MORALS
• Strong Distinction between Laws and Morals by analytical
school in 19th Century.
• John Austin maintained that law has nothing to do with
morals.
• The analytical school believed that all considerations
including morals should be separated from the study of
law.
• But, this school didn’t deny the existence of morality. It
just didn’t agree that morals and laws are the same thing.
Austin differentiates them as ‘positive law’ and ‘positive
morality’.
• Fuller gives very convincing arguments about the relationship of law and
morality but, it raises practical questions also as to who will decide what
morality is, because in our pluralistic society we may have dispute on what
exactly is moral and what is not. So, Fuller gave his ‘principle of legality’.
• According to Fuller, all purported legal rules must meet 8 minimal
conditions in order to count as genuine laws.
1) Sufficiently general;
2) publicly promulgated;
3) prospective (i.e. applicable only to future behavior, not past),
4) at least minimally clear and intelligible;
5) free of contradictions,
6) relatively constant, so that they don’t continuously change from day to day,
7) possible to obey, and
8) administered in a way that does not wildly diverge from their obvious or apparent
meaning.

• Hart criticizes Fuller’s work, saying that these principles are merely ones of
means-ends efficiency; it is inappropriate, he says, to call them morality.
 Law & Justice
• The concepts of law and justice are often confused and
misinterpreted by many. While the two are strictly
connected, they are not the same thing. Justice is a
broad concept that is based on equality of rights,
fairness and morality. Conversely, law is a body of
regulations and standards set up by governments and
international bodies and is (or should be) based on the
idea of justice. Laws are written norms that regulate the
actions of the citizens and of the government itself in all
aspects, whereas justice is a principle that may or may
not be universally recognized.
 What is Law?

• Laws are rules and guidelines established and enforced by the government
and its entities. They vary from country to country and there is a body of
international laws that applied to all states that decide to ratify certain
treaties or conventions.
• National laws are principles and norms that regulate the behavior of all
citizens and of all individuals under the government’s jurisdiction. Laws are
created by the government thorough a long and complex process, and once
established they are implemented by governmental entities and interpreted
by lawyers and judges.
• Laws establish what citizens, business, and governmental agencies can or
cannot do. Although there is a set of written legislations, the judiciary
system has the power to interpret them and to enforce them in all different
situations. Laws vary from one country to another (or even from one state
to another).
 What is Justice?
• Justice is a broad and somehow abstract concept based on equality
of rights, fairness, kindness, dignity, moral and ethics. In a just
world, we would not have:
– Discrimination;
– Violence;
– Abuses;
– Poverty;
– Slavery; and
– Injustices in general.
• Therefore, all laws should be based on the idea of justice and all
governments should enforce national laws in a just and equal way.
Unfortunately, this is not always the case and laws are often
broken, non-respected and/or enforced in biased and partial ways.
 Similarities between Law and Justice

• The concepts of law and justice are fairly similar as most laws
are thought to be just and fair. Some of the main similarities
between the two include:
• Both concepts regulate human behavior and aim at creating a
more just and equal environment;
• Law should be based on the idea of justice and should be
implemented and interpreted in a just manner – without
discriminations; and
• Both are based on the ideas of morality, equality, order and
fairness.
• The term law refers to an existing and concrete set of
written regulations established by the government in
order to regulate and control the actions of the
citizens. Conversely, justice is not a universally
recognized concept and is subject to interpretations.
Justice is often depicted a woman wearing a blindfold–
representing equality and fairness, and applying laws
and regulations to all individuals without
discrimination.
• Laws are found in written codes and are enforced
by the government and its bodies, including
security forces, police, judiciary, etc. Conversely,
justice is a more abstract concept based on the
idea of equality of rights, and fairness. All laws
should be based on the idea of justice and should
be implemented and enforced in a just way
without discrimination of sex, gender, age, color,
race, religion, language or any other status.
 Administration of Justice
• Justices is the soul of every judicial system. Justices is
established in the society by the law. So administration
of justices is the essential subject matter of the law.
The administration of justices is the process by which
the legal system of a government is executed.
• The main function of state are to protect the rights of
all person and to maintain the law and order in the
society.
• Administration means: - To management.
Justice means: - To protect rights and fair treatment.
 Origin of Administration of Justice
• It is the social nature of men that inspires him to live in a community. This
social nature of men demands that he must reside in a society. However,
living in a society leads to conflict of interests and gives rise to the need
for Administration of Justice. This is considered to be the historical basis
for the growth of administration of justice. Once the need for
Administration of Justice was recognized, the State came into being.
• Initially, the so called State was not strong enough to regulate crime and
impart punishment to the criminals.
• In the next phase of the development of Administration of Justice, the
State came into full-fledged existence. With the growth in the power of
the state, the state began to act like a judge to assess liability and impose
penalty on the individuals. The concept of Public Enquiry and Punishment
became a reality.
• Thus, the modern Administration of Justice is a natural corollary to the
growth in the power of the political state.
 Advantages of Legal Justice
• 1. Uniformity and Certainty– Legal Justice made
sure that there is no scope of arbitrary action and
even the judges had to decide according to the
declared law of the State. As law is certain, people
could shape their conduct accordingly.
• 2. Legal Justice also made sure that the law is not
for the convenience of a particular special class.
Judges must act according to the law. It is through
this that impartiality has been secured in the
Administration of Justice.
DISADVANTAGES OF LEGAL SYSTEM
1. It is rigid. The rate of change in the society
is always more rapid than the rate of change in
the Legal Justice.
2. Legal Justice is full of technicalities and
formalities.
3. Legal Justice is complex. Our society is
complex too. Thus, to meet the needs of the
society, we need complex laws which are
difficult to interpret.
TYPES OF ADMINISTRATION OF JUSTICE
• CIVIL ADMINISTRATION
Civil administration of justice Adjudication of civil disputes by the civil
courts is known as administration of civil justice. Those offences which
are dealt with by civil courts through civil proceeding are called civil
offences. The rights enforced by civil proceeding are two kinds.
– A primary rights are the privileges enjoyed by any person. A sanctioning right
is one that arises out of the violation of the other rights. A violation of breach
of the primary rights gives rise to a sanctioning right or remedial right.
– Primary rights or rights may be explained as the bundle of rights which are the
privileges enjoyed by any person, e.g., a person’s right to liberty, safety and
reputation.
– For example, if X enters into a valid contract, his right to have the contract
performed is a primary right. If the contract is broken, his right to damages for
the loss caused to him for the breach of contract is sanctioning right.
• CRIMINAL ADMINISTRATION
Administration of criminal justice deals with Public wrongs. all
offenses included in Indian Penal Code(IPC) are public wrongs. The
administration of criminal justice is to punish the offender.
Punishment may be described as the infliction by State Authority,
of a consequence normally regarded as an evil (for example
imprisonment or death) on an individual found to be legally guilty
of a crime.
The main purpose and object of criminal justice is to punish the
wrongdoer (offender) and to maintain law and order in society. It
is the State which punishes the Criminal. Punishment necessarily
implies some kinds of pain inflicted upon the offender or loss
caused to him for his criminal act which may either be intended to
deter him from repeating the crime or maybe an expression of
society disapprobation for his Anti Social conduct or it may also
be directed to reform and regenerate him and at the time ported
the society from criminals.
 Theories of Punishment

• Administration of Justice is the primary

functions of the State, is generally divided into
administration of Civil Justice and
Administration of Criminal Justice. The main
purpose of Administration of criminal Justice is
to punish the wrongdoer. It is the State which
punishes the Criminals. From the ancient
times, a number of theories have been given
concerning the purpose of punishment.
• Deterrent Theory-
Salmond said that the deterrent aspect of punishment
is extremely important. The object of punishment is not
only to prevent the Evildoer from committing the crime
again but also to make him an example in front of the
other such persons who have similar criminal
tendencies.

Even in Manu Smriti, the Deterrent Theory is

mentioned. Manu said “Penalty keeps the people under
control, penalty protects them, and penalty remains
awake when people are asleep, so the wise have
regarded punishment as the source of righteousness”.
• Preventive Theory
This theory believes that the object of punishment is to prevent
or disable the wrongdoer from committing the crime again.
Deterrent theory aims at giving a warning to the society at
large whereas under Preventive Theory, the main aim is to
disable the wrongdoer from repeating the criminal activity by
disabling his physical power to commit crime.

The supporters of this theory recognize imprisonment as the

best mode of punishment because it serves as an effective
deterrent as also a useful preventive measure. According to
Paton: “The Preventive theory concentrates on the prisoner
and seeks to prevent him from offending again in the future.
The death penalty and exile serve the same purpose.
• Reformative Theory
This theory believes that Punishment should exist to
reform the criminal. Even if an offender commits a crime,
he does not cease to be a human being. He might have
committed the crime under circumstances which might
never occur again.

The object of the punishment should be reform the

offender. The criminal must be educated and taught
some art or craft or industry during his term of
imprisonment, so that they may be able to lead a good
life and become a responsible and respectable citizen
after release from jail.
• Retributive Theory
In primitive societies, the punishment was
mostly retributive in nature and the person
wronged was allowed to have his revenge
against the wrongdoer. The principle was “an
eye for an eye”. According to Justice Holmes It
is commonly known that the early forms of
legal procedure were grounded in vengeance.
According to Sir John Salmond the retributive
purpose of punishment consist in avenging the
wrong done by the criminal to society.
• Theory of Compensation
This theory believes that punishment should
not only be to prevent further crime but it
should also exist to compensate the victim who
has suffered at the hands of the wrongdoer.
However, critics say that this theory is not
effective in checking the rate of crime. This is
because the purpose behind committing a crime
is always economic in nature. Asking the
wrongdoer to compensate the victim will not
always lower the rate of crime though it might
prove beneficial to the victim.
 Kinds of Punishment
• Capital Punishment
This is one of the oldest form of punishments. Even our IPC prescribes this
punishment for certain crimes. A lot of countries have either abolished this
punishment or are on their way to abolish it. Indian Judiciary has vacillating
and indecisive stand on this punishment. There have been plethora of cases
where heinous and treacherous crime was committed yet Capital
Punishment was not awarded to the criminal.
• Deportation or Transportation
This is also a very old form of punishment. It was practised in India during
the British Rule. The criminal is put in a secluded place or in a different
society. Critics of this punishment believe that the person will still cause
trouble in the society where he is being deported.
• Corporal Punishment
Corporal punishment is a form of physical punishment that involves the
deliberate infliction of pain on the wrongdoer. This punishment is abolished
in our country but it exists in some Middle Eastern Countries. Critics say that
it is highly inhuman and ineffective.
• Imprisonment
This type of punishment serves the purpose of three theories,
Deterrent, Preventive and Reformative.
Under Deterrent Theory, it helps in setting an example. It disables
the offender from moving outside, thus serving the purpose of
Preventive Theory. If the government wishes to reform the prisoner,
it can do so while the person is serving his imprisonment, thus
serving the purpose of Reformative Theory.
• Solitary Confinement
Solitary confinement is a form of imprisonment in which a prisoner
is isolated from any human contact. It is an aggravated form of
punishment. It is said that it fully exploits and destroys the sociable
nature of men. Critics say that it is inhuman too.