Civil and Criminal Law and Justice · Chapter 7
Study notes aligned to the official NEB syllabus.
Punishment is the lawful result the state gives to a person who is found guilty of an offence. It is not private revenge taken by the victim. It is a controlled action by the state through its courts. It comes only after a fair trial. People have long asked a simple question. Why should the state punish at all, and what does it hope to gain by punishing? Different answers have been given over time. These answers are called the theories of punishment. Four of them are standard. A good sentencing system usually mixes them together. It does not rely on only one.
The retributive theory says punishment is deserved for its own sake. The wrongdoer has upset the moral balance of society. Punishment puts that balance back. It gives the offender his "just deserts," which means the treatment he has earned by his act. Its oldest form is the idea of "an eye for an eye." Its modern form is softer. It asks only that the punishment be proportionate (समानुपातिक) to how serious the wrong was. Proportionate means the punishment matches the crime. It must not be too harsh. It must not be too light. This theory looks back at the crime that was done. It does not look forward to future conduct. Take an example. Suppose A plans the act and then deliberately kills B. Retributive thinking says A deserves the heaviest punishment the law allows. The reason is that the wrong was so serious. It does not matter whether punishing A will reform him. It does not matter whether it will frighten anyone else.
The deterrent theory looks forward. It punishes in order to create fear. The fear has two aims. First, the offender himself should not repeat the act. This is called specific deterrence. Second, other people in society see what happened to him. They are then discouraged from doing similar crimes. This is called general deterrence. Here punishment is a warning example for everyone. Think of a trader who mixes harmful things into food. He is sent to prison, and the sentence is widely reported in the news. The aim is not only to stop that one trader. It is also to make other traders think twice before doing the same thing. Deterrence works best when punishment is reasonably certain and reasonably quick. Being very harsh alone is not enough.
The preventive theory is also called the incapacitative theory. Its aim is to stop the offender from offending again by disabling him. It does this mainly through imprisonment (कैद). Prison physically removes the offender from the chance to harm society. This lasts for the length of his sentence. Think of a habitual dacoit, meaning a person who robs in a gang again and again. While he is kept in prison, he simply cannot rob the public. That protective effect is the whole point of this theory.
The reformative theory treats the offender as a person who can be corrected. It does not just want to punish him. Its goal is not revenge. Its goal is not fear. Its goal is rehabilitation. Rehabilitation means helping the offender change for the better. This is done through education, skill training, counselling and supervised work. The offender is reshaped. He then returns to society as a law-abiding member. Take an example. A young first-time offender is taught a trade while in custody. Or he is placed on community service instead of prison. He may then leave the system able to earn an honest living. This lowers the chance that he will offend again. Modern criminal justice in Nepal leans strongly toward this reformative aim. You can see this in community punishment. You can also see it in the sentencing framework of the Muluki Penal Code 2074. This is true especially for younger and first-time offenders. At the same time, the system still uses retribution, deterrence and prevention for serious crime.
Physical punishment, in the broad sense used here, means punishment that acts on the offender's body or personal freedom. Its main modern form is imprisonment (कैद). In older systems it also included corporal punishment. That meant harm to the body, such as whipping or cutting off a body part. Nepal today sets firm limits on such punishment. The Constitution of Nepal 2015 has abolished the death penalty. It also gives every person a fundamental right. No person held in custody shall be subjected to torture or to cruel, inhuman or degrading treatment (यातना). Any such treatment is punishable. The victim is entitled to compensation. So physical punishment in Nepal is really just lawful imprisonment ordered by a court. It is not harm to the body. Take an example. Suppose a police officer beats a detainee to force a confession. That beating is itself an offence. It also breaks the detainee's constitutional right. It is not a lawful punishment.
The Muluki Penal Code 2074 provides a graded set of punishments. Graded means arranged by level, from light to heavy. This lets the court match the punishment to the offence and the offender. The main forms are these. Imprisonment (कैद). Fine (जरिवाना), which is money paid to the state. Imprisonment and fine together. Compensation to the victim (क्षतिपूर्ति). And community service or community punishment (सामुदायिक सेवा / सजाय). Community punishment is a non-custodial sanction. Non-custodial means the offender is not locked up in prison. Under it the convict performs supervised unpaid work that benefits the public. He does this instead of a prison term, or alongside one. It is usually given for lighter offences. It is also given to offenders who seem suitable for reform outside prison. Take an example. A person is convicted of a minor assault. The court may order him to do supervised cleaning or caretaking work at a public place for a set number of hours. He is not locked up. The Criminal Offences (Sentencing and Execution) Act 2074 recognises such alternatives to imprisonment. It guides the court in choosing them. The court looks at how serious the offence was. It also looks at the offender's own situation.
Community punishment is often said to be more reformative than ordinary physical punishment. The reasons are practical. It keeps the offender within society instead of isolating him in prison. So his family, work and social ties are not broken. He also avoids the "criminalising" effect of prison. That effect means mixing with hardened inmates and picking up their worse habits. Think of a 19-year-old convicted of a first, minor theft. If he is sent to prison, he may lose his job and his studies. He may also learn worse habits from serious criminals. If instead he is placed on community service, he keeps his routine. He repays society through his work. He is far more likely to stay out of trouble. Community punishment also allows restitution. Restitution means repairing the harm done. The offender's labour benefits the very community that was wronged. This builds a sense of accountability rather than mere suffering. It also eases prison overcrowding. And it is far more cost-effective for the state. The state need not feed, house and guard the offender. Community punishment is forward-looking. It helps the offender rejoin society. So it fits the reformative theory far better than a purely punitive prison term. For these reasons the modern trend is clear. Nepal's 2074 codes reflect it. The trend is to use community punishment for lesser offences and suitable offenders. Imprisonment is kept for serious crime. The aim is that punishment corrects rather than merely hurts.