Every legal system grapples with a fundamental question: what should happen to a person who breaks the law? One of the oldest and most persistent answers is straightforward – they should be punished. This is the essence of the punitive approach to crime. It treats punishment not merely as a consequence but as a deliberate instrument of justice, social order, and deterrence. Far from being a relic of the past, the punitive approach continues to shape criminal law and sentencing policy across the world, including in India – most visibly in the Bharatiya Nyaya Sanhita, 2023, which replaced the colonial-era Indian Penal Code from July 2024.
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What is the punitive approach to crime?
At its core, the punitive approach holds that crime is a deliberate choice made by an individual, and that the state has both the right and the obligation to respond with proportionate punishment. It does not primarily concern itself with why a person committed a crime – poverty, trauma, or circumstance – but with the fact that they did, and that society must respond decisively. The legitimacy of this punishment rests on one key condition: it must be imposed by a recognized authority through established legal procedures. A penalty handed down by a court is punishment; the same act carried out outside the law is violence.
Criminologist Donald R. Cressey – co-author of the landmark textbook Principles of Criminology with Edwin Sutherland – offered an influential sociological explanation for why societies gravitate toward punitive responses. According to Cressey, the justification for the punitive approach lies in the fact that the criminal is made a scapegoat, providing relief or gratification to other members of the community. This relief stems from a sense of freedom from their own suppressed guilt feelings about crime. His reasoning was rooted in the belief that all human beings harbour some criminal propensities, even if these are never acted upon. When punishment is publicly administered, it offers a socially sanctioned outlet for these impulses. Without such an outlet, Cressey warned, communities might resort to mob justice or lynching. Beyond individual psychology, the punitive response also serves a collective social function – the hostile reaction to the criminal acts as a bond among non-criminal members of the community, reaffirming shared moral values and reminding society of the principles that hold it together.
The three pillars: retribution, deterrence, and incapacitation
Retribution
Retribution is perhaps the most instinctive justification for punishment. It holds that a person who causes harm deserves to suffer in proportion to that harm – the ancient principle of lex talionis, or “an eye for an eye.” From this perspective, punishment is not about future consequences at all; it is about moral balance. The wrongdoer has disrupted the social and moral order, and punishment restores it. In Indian jurisprudence, this principle is visible in the graduated structure of offences and sentences – the more serious the harm caused, the more severe the prescribed punishment. Under the Bharatiya Nyaya Sanhita, murder, for instance, attracts death or life imprisonment, directly reflecting the retributive logic that the gravest crimes call for the gravest responses.
Deterrence
Deterrence operates on a more forward-looking logic. It argues that punishment, or the credible threat of it, prevents future crime. There are two dimensions to this: specific deterrence targets the individual offender, making them think twice before reoffending; general deterrence targets society at large, using the punishment of one person as a warning to others. Indian courts have explicitly invoked general deterrence in high-profile cases, noting the need to send a “strong message” to society when handing down sentences for crimes that provoked public outrage. The 2012 Delhi gang rape case is a clear illustration – the public demand for severe punishment and the subsequent 2013 criminal law amendments, which introduced the death penalty for repeat rape offenders, were driven largely by the belief in punishment as a deterrent signal to potential offenders.
However, research on deterrence is more nuanced than popular discourse suggests. Studies indicate that while the certainty of punishment has a genuine deterrent effect, the severity of punishment delivers diminishing returns beyond a certain point. In other words, the knowledge that one will be caught matters more than the knowledge that the sentence will be harsh. This is a persistent challenge for purely punitive policy-making.
Incapacitation
Incapacitation takes the simplest view: a person who is imprisoned cannot commit crimes against society while in custody. It does not require any moral theory about what the offender deserves, nor does it assume that punishment will change behaviour. It simply removes the dangerous individual from circulation. The U.S. Office of Justice Programs’ analysis of India’s penal system notes that incapacitation remains one of the recognised goals of India’s correctional framework, alongside deterrence – even as rehabilitation has grown in importance over the decades.
How the punitive approach is embedded in Indian criminal law
India’s criminal law has historically carried a strong punitive character, shaped first by ancient texts like the Manusmriti, then by Mughal legal traditions, and most significantly by the Indian Penal Code of 1860, which was drafted under British colonial rule. As researchers have noted, the colonial approach was largely retributive-deterrent: punishment was designed to be stern and exemplary, asserting imperial authority and discouraging any challenge to it. This framework persisted through decades of independence, with the IPC remaining mostly intact until its replacement by the Bharatiya Nyaya Sanhita in 2024.
The BNS retains the punitive architecture of the IPC while updating it for contemporary realities. Under the BNS, imprisonment terms have been increased for 33 offences, fines enhanced for 83 offences, and mandatory minimum punishments introduced for 23 offences. The total number of offences carrying the death penalty has risen from 11 to 15, now including gang rape of a woman under 18, murder by a mob, organised crime, and terrorist acts. Under Section 4 of the BNS, the recognised forms of punishment include death, life imprisonment, rigorous imprisonment, simple imprisonment, forfeiture of property, fines, and – notably – community service, which represents a small but significant gesture toward restorative principles.
The enhanced punishment for repeat offenders is another classically punitive feature carried forward from the IPC. Under Section 13 of the BNS, a person with a prior conviction for property-related offences who commits a similar offence again becomes liable for life imprisonment or up to ten years – a direct application of incapacitation logic combined with the idea that recidivists pose a heightened danger to society.
The social and moral function of punishment
Beyond the formal legal rationale, the punitive approach serves a deeper social and psychological function. Punishment publicly reaffirms the boundaries of acceptable behaviour. When courts impose sentences in cases that have shaken public conscience – whether it is a brutal murder, an act of terrorism, or large-scale fraud – the act of sentencing communicates to society that its values have been upheld and its offenders called to account. This is why media coverage and political discourse in India often employ a strongly punitive vocabulary after high-profile crimes, with calls for stricter laws and harsher sentences. The relationship between public sentiment and punitive legislation is not incidental – it reflects the punitive approach’s role in maintaining what might be called the moral solidarity of the community.
Critiques and limitations
The punitive approach is not without serious criticism, and understanding these criticisms is essential for a well-rounded legal education. A key concern raised by researchers and civil society organisations is that India’s penal framework suffers from significant inconsistencies. Offences of vastly different gravity sometimes attract identical punishments, which undermines the proportionality that retributive theory demands. Life imprisonment, for example, is prescribed both for murder and for certain financial offences – a disparity that is difficult to justify on any principled basis.
A more systemic critique is that punitive approaches tend to disproportionately affect marginalised communities. Studies suggest that socioeconomically disadvantaged groups and religious minorities are overrepresented in India’s prisons, raising the question of whether the punitive system, in practice, delivers equal justice when the social determinants of crime are not addressed alongside punishment. As researchers have argued in the context of rethinking India’s use of criminal law, punishment and deterrence should not become the default response to every social problem, including those better addressed through civil, administrative, or community-based mechanisms.
Additionally, the punitive approach has been criticised for addressing the symptoms rather than the causes of crime. By focusing exclusively on punishment after the fact, it can neglect the social, economic, and psychological conditions – poverty, unemployment, lack of education, mental illness – that research consistently identifies as drivers of criminal behaviour. A system that only punishes without addressing root causes is likely to see persistent recidivism.
Why the punitive approach endures
Despite these criticisms, the punitive approach remains central to criminal justice – in India and globally – for reasons that go beyond mere tradition or institutional inertia. First, it resonates with deeply held moral intuitions about fairness and accountability. The idea that those who cause harm should face consequences is not merely a legal convention; it reflects something that most people across cultures regard as just. Second, the punitive approach provides the state with a clear, enforceable mechanism for maintaining public order. When other mechanisms – social services, rehabilitation programmes, preventive policing – are under-resourced or absent, punishment remains the most reliable tool the state can deploy. Third, victims and affected communities often need the acknowledgement that punishment provides – a formal recognition that a wrong was done and that it was taken seriously by the law.
India’s experience illustrates that the punitive approach and reformative aspirations are not mutually exclusive. The Bharatiya Nyaya Sanhita attempts – however imperfectly – to hold both in tension: retaining severe penalties for heinous offences while introducing community service and prioritising victim-oriented justice. As an academic analysis published in the European Economic Letters (2025) notes, India today operates with a combination of penal philosophies – retributive for heinous offences, deterrent for potential offenders, preventive for habitual criminals, and limited restorative measures – all co-existing within the same legal framework. This plurality reflects both the complexity of crime and the competing demands that any criminal justice system must balance.
What do you think? Is the punitive approach a genuine instrument of justice, or does its continued dominance in Indian law reflect an institutional reluctance to invest in more effective, root-cause-based solutions to crime? And when public sentiment demands severe punishment after high-profile cases – as it did after the 2012 Delhi gang rape – should lawmakers follow that demand, or resist it in favour of evidence-based criminal policy?
References
- https://www.indiacode.nic.in/handle/123456789/20062
- https://egyankosh.ac.in/bitstream/123456789/38753/3/Unit-2.pdf
- https://www.ojp.gov/ncjrs/virtual-library/abstracts/efficacy-punishment-india-critical-analysis
- https://prsindia.org/billtrack/the-bharatiya-nyaya-2023
- https://en.wikipedia.org/wiki/Bharatiya_Nyaya_Sanhita
- https://vidhilegalpolicy.in/research/how-india-punishes/
- https://idronline.org/article/social-justice/how-india-punishes-rethinking-the-use-of-criminal-law/
- https://www.legalserviceindia.com/legal/article-18759-types-of-punishment-under-the-bharatiya-nyaya-sanhita-2023-a-detailed-analysis.html
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