The problem of punishment: State force against citizens, kinds and theories of punishment

1. Can the State use force against its citizens?

(a) Arguments for

• Monopoly of legitimate force. Weber defined the State as the community that successfully claims the monopoly of the legitimate use of physical force within a territory. Force is part of what makes it a State.
• Order and security. Hobbes: covenants without the sword are but words. Some people will break the law; without force against them, the law-abiding are at their mercy.
• Protection of rights. Force used against a thief or a rioter protects the rights of others.
• Enforcement of the general will. Rousseau: whoever refuses to obey the general will shall be compelled to do so by the whole body, which means only that he will be “forced to be free”.
• Defence of the constitution. Insurrection, terrorism and secession threaten the democratic order itself.

(b) Arguments against or for limiting it

• Anarchists (Godwin, Kropotkin, Tolstoy) hold that State force is itself the main evil and that society can cooperate without it.
• Marxists see State force as class coercion.
• Gandhi rejected violence in principle and wanted a State that relies on the least possible force.
• Liberals accept force but insist that it be limited and accountable, because force without restraint becomes tyranny.

(c) Limitations and conditions to be observed

1. Rule of law. Force only under a law, never at the discretion of an official. Article 21: no person shall be deprived of life or personal liberty except according to procedure established by law, and that procedure must be fair, just and reasonable.
2. Necessity and proportionality. Force must be the minimum needed; lethal force only as a last resort.
3. Due process. Fair trial, presumption of innocence, right to counsel (Article 22), protection against double jeopardy and self-incrimination and against retrospective criminal laws (Article 20).
4. No torture or cruel punishment. Human dignity is protected under Article 21 and international human rights law.
5. Accountability. Use of force must be reviewable by courts, legislatures and human rights commissions.
6. Legitimate purpose. Force must serve public order and justice, not the interest of a party or ruler.

2. Meaning of punishment

Punishment is the deliberate infliction of suffering or loss, by an authority, on a person found to have broken a law, because of that breach. Its elements: (i) pain or deprivation, (ii) for an offence, (iii) of an actual or supposed offender, (iv) imposed intentionally by persons other than the offender, (v) by an authority under the legal system (the standard analysis by Antony Flew and H. L. A. Hart).

3. Kinds of punishment

Section 4 of the Bharatiya Nyaya Sanhita, 2023 (in force from 1 July 2024, replacing section 53 of the Indian Penal Code) lists the punishments to which offenders are liable:

1. Death.
2. Imprisonment for life.
3. Imprisonment, either rigorous (with hard labour) or simple.
4. Forfeiture of property.
5. Fine.
6. Community service: new in the BNS, for minor offences such as petty theft by a first offender who returns the property.

In general political theory other kinds are also described:

• Corporal punishment (whipping, mutilation): abolished in India and most democracies.
• Banishment or transportation: the IPC’s “transportation for life” was replaced by imprisonment for life in 1955.
• Solitary confinement: as part of rigorous imprisonment, strictly limited.
• Probation and admonition: alternatives to imprisonment under the Probation of Offenders Act, 1958.

4. Theories of punishment

(a) Deterrent theory

Punishment is meant to discourage the offender and others from committing crime. It should be severe enough and certain enough that the pain outweighs the gain. Bentham and Beccaria (On Crimes and Punishments, 1764) gave it its classic form; Beccaria stressed that certainty of punishment deters more than severity. Criticism: harsh punishment has not eliminated crime; crimes of passion are not calculated; excessive severity is inhuman.

(b) Retributive theory

Punishment is deserved: the offender has done wrong and must suffer in proportion. Its ancient form is lex talionis, an eye for an eye. Kant gave it philosophical form: punishment must be imposed because a crime was committed, not for any further good, and its measure is equality with the crime. Hegel: punishment negates the wrong and honours the criminal as a rational being. Criticism: it looks backward and does nothing to reduce future crime; it can become vengeance.

(c) Preventive theory

Punishment disables the offender from repeating the crime: imprisonment, death, forfeiture of licence. Its focus is protection of society rather than the offender. Criticism: it may justify long detention of persons who might not reoffend.

(d) Reformative theory

Crime is often the result of social and psychological causes; punishment should reform the offender and return him to society as a law-abiding citizen. Education, vocational training, probation, parole and open prisons follow from it, as does Gandhi’s view: “hate the sin, not the sinner”. Criticism: some offenders cannot be reformed, and too much leniency weakens deterrence.

(e) Expiatory theory

Punishment purifies the offender: through suffering he atones for the wrong. It has religious roots (penance). Criticism: atonement is inner and cannot be compelled by the State.

(f) Restorative approach (modern)

Repairing harm to the victim through compensation and reconciliation. Victim compensation schemes and the BNS’s community service reflect it.

How this is examined

January 2026 (80 marks) Q.5(a) and February 2025 Q.5(a): “What is punishment? Explain the theories of punishment”; January 2026 (100 marks) Q.9(c): “Brief description of the theories of punishment”; February 2025 Q.5(b) and October 2023 Q.5(b): kinds of punishment; October 2023 Q.5(b) alternative: “Can the State use force against its citizens?”; August 2024: short note on deterrent theory. For kinds, always cite BNS section 4.