INTRODUCTION –

Punishment is a fundamental objective of criminal law, with a goal to deter criminals from committing more crimes, in addition to providing justice to the victims. Punishments play an important role in ensuring societal well-being, in addition to replenishing the faith of the society in the legal system.
But, should the wrongdoer be given an opportunity to reform and re-enter the society as a better individual, or should they be punished harshly, that is a fundamental question. This question has been the matter of a long ongoing debate in the current legal scenario.
While the retributive approach aims at severe and harsh punishment to the victim, reformative approach advocates for opportunities that help rehabilitate offenders through relevant initiatives such as vocational training or therapy sessions.

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RETRIBUTIVE APPROACH –

This approach works on the ‘Eye for an Eye’ model, where punishment is of the same intensity as of the crime, and that the offender must feel the same amount of suffering as felt by the victim.
This approach works on various principles, such as Principle of Responsibility (A Person may only be punished if he/she has voluntarily done something wrong), Principle of Proportionality (The punishment to an offence should either be equivalent to or match the intensity of the crime), and Principle of Just Requital (Victims should see the wrongdoer getting punished).
This approach can be considered as being victim centric, as it takes into account the pain and agony of the victims in deciding the punishment. Additionally, victims also tend to call for harsher punishments to the offenders for adequate discharge of justice and to ensure an appropriate closure. Also, grievous crimes such as the Nirbhaya Rape Case result in mass public outrage and render it necessary for the offenders to be given an adequate punishment for setting up a suitable precedent for future offenders.

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INDIAN CONTEXT –

While India has seen a shift towards more of a Preventive or Reformative Approach, glimpses of the retributive approach can still be seen in various landmark cases, where the penalty is proportionate to the severity of the crime. Indian courts, while sentencing consider both the crime and the criminal, which aligns with the Retributive Approach.
For example, the tragic Delhi Rape Case (Nirbhaya, 2012) is a great example of application of the Retributive Approach, where, by the decision of the Supreme Court, 4 out of the 6 convicts were given death penalty, which is only given in the rarest of rare cases.

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REFORMATIVE APPROACH –

In the words of Mahatma Gandhi – ‘Punish the Sin, Not the Sinner’
This approach differs fundamentally from the retributive approach, aiming towards rehabilitation and inclusivity for the offenders, by means of vocational trainings or skill development initiatives, which help them blend into the society and focus on re-building their life and livelihoods, addressing the objectives of both fairness to the victim as well as preserve the safety and security of the community.
Several initiatives, such as open prisons, prison education, vocational trainings etc. are seen to have shown a considerable improvement in such criminals. Additionally, the Juvenile Justice Act, 2015, also advocates for reformative justice for minor offenders. Also, the recent inclusion of community service as a punitive measure under the Bhartiya Nyaya Sanhita 2023 is a landmark step forward with respect to this approach, where, under Section 4(f), the court may mandate community service as punishment for offenders, wherein they perform tasks that benefit the community without compensation.

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INDIAN CONTEXT –

The Indian Constitution, by virtue of articles 72 and 161 authorise the president to pardon a wrongdoer, Section 54, IPC allows for commutation of death penalty into life imprisonment, the Probation of Offenders Act allows for discharge of a wrongdoer on account of good behaviour, and provisions such as Probation and Parole align with the principles of Reformative Approach.

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RETRIBUTION VS REFORMATION – THE CONFLICT

While both the approaches work on their respective models, which ultimately aim for fair and just legal decisions, the conflict arises in their application. The retributive approach advocates harshness and severity of punishments, overlooking the perspective of the offender, and the adverse effects that such severe punishments can have on the lives of the individual. Long term prison sentences and large capital punishments may negatively affect the personal, social and professional lives of the individual.
However, there are two facets of every coin, and these approaches are no exception. While the Reformative Approach is in stark contrast to the Retributive Approach and advocates for leniency, the conflict still persists.
Leniency may not always work in case of crimes, especially the ones related to heinous offences such as sexual offences or women centric crimes. On the contrary, leniency in such cases may even promote such offenders, as fear of punishment may decrease, especially in the case of hardened criminals.
So, the question persists – which approach is better suited in the long run?

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CONCLUSION – THE WAY FORWARD

The answer lies in the adoption of a mixed-model approach – where the positive aspects of both the approaches are simultaneously adopted to cater to the rights of both the victim and the offender. An example of this approach can be the provisions of the Probation of Offenders Act, allowing for discharge on account of good behaviour (Section – 4) (Reformation), but it is not applicable to conviction of such offences, the penalty for which is death or life imprisonment (Retribution).
Such an approach ensures that the punishment is neither too harsh for the offender to suffer nor too lenient for the victim and the crime to be forgotten or overlooked.

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REFERENCES –

blog[dot]ipleaders[dot]in/reformative-theory-of-punishment/

www[dot]legalserviceindia[dot]com/legal/article-17100-analysing-community-service-as-a-mode-of-punishment-in-bharatiya-nyaya-sanhita-bns-2023.html

blog[dot]ipleaders[dot]in/theories-of-punishment-a-thorough-study/

www[dot]manupatra[dot]com/roundup/334/Articles/An%20eye%20for%20an%20eye%20will%20make%20the%20whole%20world%20blind.pdf

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