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THE RETRIBUTIVE WAY: A THEORETICAL UNDERSTANDING OF HOW THE MOST OBSOLETE FORM OF PUNISHMENT LINGERS IN THE MODERN PENAL SYSTEM (By-Soham Banerjee)
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THE
RETRIBUTIVE WAY: A THEORETICAL UNDERSTANDING OF HOW THE MOST OBSOLETE FORM OF
PUNISHMENT LINGERS IN THE MODERN PENAL SYSTEM
Authored By-Soham Banerjee
Abstract
There are
five main theories of punishment viz., preventive theory of punishment,
deterrent theory of punishment, retributive theory of punishment, the expiatory
theory of punishment and reformative theory of punishment. The five theories
are separated from each other by their way of representation and the actionable
position we have put forward in the legal system. The main motto of the penal
system is to deter the criminal and to prevent the commission of the crime
either by the criminal or others. Though such an objective is enshrined yet, we
fail to understand the practicality of these theories in the modern penal
system.Due to its barbaric and inhumane nature, this form of punishment stands
neglected in the modern penal system which roots in the form of rehabilitation
and reformation.
However, we
cannot undermine the fact that even though we declare the truth of not being
anarchical or using the most dangerous form of punishment yet, the modern
regulations seem incapacitated by the fact that they couldn't eradicate the
coaxial retributive nature while trying to find the exact link between the
preventive, deterrent and reformative theories of punishment. In reality, we
have always seen the failure of the penal system to segregate the forms of
punishment through its laws and therefore, the taboo related to the societal
hatred towards criminals and their work stands tall even today. Through this
article, the author tries to analyze the various laws dealing with punishment
and their nature through illustrations and facts thereby, trying to understand
the topic in a theoretical way. The author also tries to explore the
retributive aspect of punishment and tries to answer the question of its
relevance, necessity and importance with respect of the various penal regulations
present in the system.
KEYWORDS: theories of punishment, retributive theory,
penal system, crimes.
Inclinations
toward crime and its nature have always been disastrous and unhealthy for
society and for the person, to be specific. Such inclinations in the modern era
have given rise to the crimes of rape, murder, sexual abuse, cyberbullying,
cyber security breach etc. these crimes have influenced many and their
punishments have tried to deter many but failed to prevent their recurrence.
The quick money and satisfaction of breach of law have been a thrill for many
criminals, especially the newer ones and therefore, the initial breach seems to
be a heroic act. This again calls for the subsequent occurrence of crime as an
act of the influence of thoughts which are pro-criminal and therefore, the
dream of a 'crime-free society' still stands as a dream today. We know that the
various theories of punishment serve different penal aspects through their way
of administration and working, but, these theories even have some shortcomings
which are exhibited in the practical field. The basic purpose of punishment is
to make the criminal realize his or her mistake and generate a sense of
law-abiding nature amongst his or her thought process[2].
But, with the instances of life imprisonment or capital punishment, it seems
that the reality is to the extent of understanding 'out of focus', as the more
the punishment, the more chances of creating a hardened criminal exists as an
expected outcome.
The
introduction of various reformative measures is truly a way of moving towards
the desired goal of justice. But, the socio-economic conditions or the various
other physical and mental processes either through influence or intermingling
have brought forward the various facets of crime causation and therefore, these
are an antecedent to what we observe as the modern increase in the crime rates.
The influx of hatred towards the criminals or the attainment of justice by
passive methods has allowed people to be harsher to the offenders than the law
itself. The father of the nation, Mohandas Karamchand Gandhi once said, "
An eye for an eye will make the whole world blind". I cannot say whether
the world has physically turned blind in the process of losing faith in the
basic principles of humanity but I can affirm the fact that people have become
more self-centred and pro-violence whenever it comes to matters of dealing with
criminals. Moral policing can be considered the best example of how the
retributive era works in today's forum of society. People believe in instant
punishment for the offender no matter of understanding the basic reason or the
purpose for which he or she committed a crime. Usually, offences related to
petty theft or eve teasing or molestation or any offence related to black
magic, witchcraft et.al has seen a violent public response. In the case of
K.M.Nanavati v. the State of Maharashtra,1962 AIR 605, it was surprising to see
the public contemplate the issue of the Commandant's wife rather than being
interested in the murder committed by the former accused of doing so. Societal
norms and practices have always been an influential factor in almost every
sector of the world and with the common coronavirus pandemic, it became evident
that no matter how much we preach the philosophy of humanity we are always
addicted to nothing but self-centred values and ideologies and hardly, a few
come up to the extent of breaking the societal boundary to establish the true
nature of humanity and create a balance between the good and the bad. Because
all criminals have an option of reforming themselves, we need to understand
that more than regulations; we need a societal opportunity for the offenders to
reform themselves because the lack of proper environment and the lack of proper
social awareness are two main reasons for the rise of hardened criminals who
prefer to be an outlaw than being a responsible citizen.
The form of
punishment where physical pain, torture or various other punishing methods are
used is synonymous with the retributive theory of punishment. We know that
there are five main forms of punishment viz., the deterrent form of punishment,
the retributive form of punishment, the preventive form of punishment, the
expiatory form of punishment and the reformatory form of punishment. These
theories have primarily been the main sources of punishment in the ancient,
medieval and modern periods. Though these theories are said to be separate from
each other, we find that these are interlinked with one another through a thin
thread which seems to be difficult to dispose of and therefore, I believe we
have continuously failed to incorporate the essence of punishment and even by
exploring newer modes of punishment which are commonly reformative have failed
to produce the desired results.
Thus, even
in the modern 21st century where we note things in digital format,
where computers have replaced the age-old calculators and typewriters, in an
age where we have witnessed digital court hearings, it is painful to say that,
we are still lagging in administering the right way of punishment and lingering
with the most obsolete yet the most prevalent theory of punishment or the
retributive theory of punishment.
Observations
1.
A GENERAL PERSPECTIVE[3]
The
retributive theory of punishment is a wrathful form of punishment which shows
the presence of revenge in its incorporation. This theory primarily focuses on
the pain and the level of torture inflicted on the criminal whosoever he or she
is irrespective of the crime committed to control the crime and make the
offender realize the nature of the offence committed. This theory can be said
to be the most violent of all and therefore, it is a clear indication that it
is a punishing system which is philosophically distant from the main objective
of punishment which is reformation. As it is expected that punishment prevents
the occurrence of crime again and allows the criminal to undergo a process of
introspection and search for the reason for the commission of the crime and be
sympathetic to other fellow beings and be a law-abiding citizen.
Considering
the nature of punishments in the Indian penal system, there are two which are
the harshest as compared to other punishments: life imprisonment and capital
punishment. While the former is a mentally painstaking punishment, the latter
is a physical disruption of the life of the criminal for an offence which is
irrevocable and sets a negative example to society. The success rates of these
punishments are not very proper because both of them fail to estimate the
roughness with which the offence was committed or with which the offence was an
outcome of the various influences or the various other factors which influenced
the crime of such a grievous nature. If that is the case, then the principle of
reformation seems to have a lesser impact on criminals who commit offences of
such a sort. Moreover, we need to observe in a country like India, where there
is a criminal conspiracy happening in most of the lanes, which may not be of a
serious offence like rape or murder but may involve offences like money laundering,
fraud, threats etc. it is a matter of concern to whether the penal laws,
reformatory in nature can fulfil the purpose of their existence? The necessity
of reformation of a criminal is seen as a distant possibility through the
administration of capital punishment to a criminal who has committed a serious
offence because the penal systems have failed to devise a better
punishing
system than capital punishment, which is again a question mark to the
penologists all over the globe. Even though we are motivating students to go to
school, acquire proper skills, and develop the spirit of nationality, through
the incidents of some of the most heinous crimes taking place, the question
persists: whether capital punishment is the much-needed equal punishment for
the offender who has stepped down to such a position that he or she could
commit such a crime which not only is a harm to the individual or group but the
society at large?
This type of
incident forces us to look over the textbooks of law and consider the opinion
on that whether we can progress amid such a chaotic civil society where
everyday crimes are at our breakfast table through the Android/iOS phones or
newspapers or the television but what is ignored is our mentality towards crime
and criminals. Even in the 21st century, we consider a person
returning from jail after completing his or her term as an offender, we hate
the crime and the criminal. This behaviour from society is a taboo which
catalyzes the offenders to turn to the life of crime and eventually, become an
outlaw. Therefore, when such behaviour persists it is difficult to place a
proper penal system as the main objective is left unfulfilled.
Whenever we
witness the terms of capital punishment even for a second or so, we have to
pause because a criminal being awarded such a punishment is a thing which
forces us to look into the matter and understand the reason for it through our
layman's understanding but the big picture is we have ignored both the crime
and punishment while searching for the fine prints. As per the report by
Project 39A, a criminal law reforms advocacy group based at National Law
University, Delhi there are 488 death penalties awarded and this figure is the
highest in the last 17years. This has been a matter of concern because even
though the Indian penal system calls for this punishment to be awarded in the
'rarest of the rare cases' yet it is a matter of concern to have around so many
rarest of the rare cases that did not call for a better form of punishment.
Here, we can see that the criminal is beyond the prospect of reformation and
therefore, needs to be awarded a punishment which fully takes away the life of
the criminal. Then, the question arises, if we fail to negotiate with the mindset
of the criminals that they indulge in such heinous crimes, what is the use of
going for punishments which are softer and appear more humane to the
penologists?
The word
retributive means,” the dispensing or receiving of reward or punishment especially in
the hereafter”[5],
that is, this form of punishment believes in the execution of any type of
punishment is in its harshest form. Scholars of this theory do not consider reformation
and believe that through retribution they can put an end to the crime and the
criminal together. The Code of Criminal
Procedure, 1973[6] through
Section 354(5)[7] allows
for the execution in the rarest of rare cases. This means that the provision is
still a necessity and this is evident through the Law Commission Report of 2015
which calls for more advanced forms of execution systems apart from the
conventional hanging as per modern developments. This indicates that even
though the penal laws are moulded to work as a system of reformation and the
provisions concerning pregnant women prisoners or juveniles in conflict with
the law are present yet somewhere we are focusing more on the eradication of
the criminal than the crime. Section 235(2) of the Code of Criminal Procedure,
1973 allows for separate proceedings for conviction
and
sentencing.
Capital
punishment seems inevitable for offences against women, children or the nation
but then the consequences of such a crime are a matter of concern because only
then we can analyze the facts of the crime appropriately. But, some crimes are
of such complex nature that we are unable to distinguish between the proper
punishment to be awarded to such a criminal who in most cases has lost faith in
principles of law and justice, and have turned a blind eye to society and are
considered as the anti-social elements who disturb the peace of the society in
an unperturbed manner. Therefore, it is difficult to post a plausible
explanation for what we call an adept policy of delivering justice to society.
Now, these situations force us to contemplate the necessity of capital
punishment and this being a tradition for the particular offences mentioned in
the Indian Penal Code, 1870 and the Code of Criminal Procedure, 1973 along with
some more legislations like the Andhra Pradesh Control of Organised Crime
Prevention Act, 2001; the Maharashtra Control of Organised Crime Act, 1999; the
Karnataka Control of Organised Crime Act,2000; Army Act, 1950; Border Security
Force Act, 1968; Bombay Prohibition (Gujarat Amendment), 2009; The Defence of
India Act, 1971; the Assam Rifles Act, 2006; the Coast Guard Act, 1978; the
Geneva Convention Act, 1960; the Explosive Substances Act, 1908; the
Indo-Tibetan Border Police Force Act, 1992 etc. these regulations have the
provisions for capital punishment concerning some offences which are not in the
quota of mercy or the offenders are beyond the concept of reformation. The
above-mentioned regulations are quite rigid owing to the nature and scope of
the respective acts and the necessity of their existence; however, these are
the things which force us to think beyond the necessity of reformation because
there are some objectives which cannot be compromised. Here lies another
question, whether the nature of crime can be distinguished from punishment or
are we lacking a proper penal system? We must find an answer to this question
to be able to search for a better dimension.
3. The Offence Perspective
In India and
the world, certain offences are beyond the prospect of reformation and in fact,
some of these offences are so complex and painful that they are bound to affect
society in the long run. These types of offences can never be granted the scope
of a relaxed or a diminished proportion of punishment owing to their nature and
results. The offences of rape, murder of women or a child or pregnant women,
organized crime to murder someone, or any offence against the nation or its
allies are such offences which are difficult to be given the scope of a
punishment which is rendered to the offences which less severe than these. We
need to be very clear with the notion that any offence which harms the nation
and its citizens directly or indirectly needs stricter to strictest action in
response for national safety and existence. After all, a traitor cannot be
allowed to continue his anti-national activities. Bound either by the
philosophies of religion or arrogance or any other sociological or
psychological factor which provoked him or her to move into such a path can be
dangerous for the nation's future and its internal or external safety or both.
Again, women are the most important pillar of society, owing to the atrocities
which they have faced from time immemorial to the present day, an incident of
rape or sexual assault or murder can be considered a grievous offence against
society and such a criminal needs punishment. This doesn't mean that the
offender shouldn't be given a chance to survive and reform but the gravity of
the offence decides this matter. A woman put to a vegetative state after rape
allows for serious punishment to the offender and the extent of his movement
either out of physical or psychological conditions makes the criminal far from
the objective of attaining reformation and that is what calls for a retributive
approach in the punishment, which cannot be denied owing to its lack of proper
substitute and
the nature
of the offence. Herein I discuss a few case laws to seek some clarity.-
This is the
case which deliberately discusses to what extent human lust can go. The
punishment awarded to the criminals affirmed capital punishment and this seemed
to be befitting to the offence of rape along with the insertion of an iron rod
on the private parts of the victim who succumbed to the injuries in the
hospital. An incident which urged for the societal cry for justice and pressed
the need for a befitting punishment for such a barbaric or better said, a
demonic act done by the criminals upon the innocent upcoming physiotherapist
who dreamed to serve the nation through her knowledge and dedication witnessed
such an act of criminality which is beyond the description of magnanimity or in
general words, mercy. I believe a crime against society requires a befitting
punishment and this is the best case where deterrence is established though it
may seem retributive as this was necessary. The scope for reformation of these
hardened criminals is beyond the practical possibility and therefore, capital
punishment serves to deter and prevent such crimes while strongly condemning
them (the crime). The 2012 Delhi gang rape case is an example of the maximum
brutality that a woman can face owing to her gender and the lust of the males
of the society, these criminals disregard the idea of humanity, and have always
been keen to exploit and break the laws for personal benefit, have objectified
woman and have purposefully brewed the intention of not being a human in the
human skin. The punishment, therefore, is justified by way of the nature of the
offence and the result of the crime which is feared by all sensible people of
the society who have condemned such an issue with stern protests and verbal
explanations. However, an offence like this mandates the usage of retribution
although this is not present in the Indian legal system and that means the
punishments are deterrent in nature and preventive in the outcome because the
presence of such a punishment means that we are in a state of accepting modern
reformation philosophies when it comes to the penal process. But, some crimes
make these punishments far more than necessary, they mandate the extremities of
it being administered.
The Mumbai
Terrorist Attacks of 2008 is said to be one of the most serious attacks in the
history of India with the attack was similar to waging a war against India,
accused Kasab, a Lashkar-e-Taiba
terrorist had killed around 72 people while injuring many and this can be
considered as a serious crime which is against India and her people which can
never be considered for mitigation or negotiation with the terms of reformation
as the one who has been trained to attack the peace and breach the security of
the nation, thereby mercilessly killing people with disregard to humanity and
bearing a misconception on religion can very rarely be turned to the path of
mercy. The criminal was awarded the death penalty, which was again upheld by
the Hon'ble Supreme Court of India is an example of why such severe punishment
is necessary when it comes to the question of national security and the
citizens of India. This is not an eye for an eye but is a deterrence measure to
imply to the nations of the world that India never compromises the security,
peace and well-being of its citizens and its well-wishers. The perfect trial by
the Trial court in Mumbai is an example of how regulations were maintained
while keeping the law over the top and this indicates that sometimes the
situations may force befitting punishments which appear retributive but are
deterrent or preventive in nature and
these
situations allow for such befitting punishments to keep the society's call for
justice and the need of the law intact and pure.
Conclusion
The
above-mentioned cases and the theoretical observation state the very necessity
of the regulations that we have in the country today. With the barbaric form of
criminal activities being in the limelight, where one or the other day, cases
of murder, rape, and terrorism are on the forefront it is important to deal
with such matters with a norm based on the principles of justice and the
required necessities. The punishments seek to deter the offender and prevent
its occurrence in the long run but sometimes even life imprisonment may seem
difficult to observe by the jailed inmate as seclusion has always been a mental
agony and physical torture but to maintain befitting punishments to the amount of
crime committed these punishments must continue for the benefit of the society
at large. Although, the retributive theory of punishment is an obsolete one yet
it indirectly surfaces through capital punishment, life imprisonment or
solitary confinement.
While the
retributive form of punishment is neglected by modern penologists but as I have
stated earlier, it means the thin line between the deterrent, the preventive,
the retributive, the expiatory and the reformatory form of punishments have
been different in approach and appearance but are interlinked through a thin
silk thread owing to its various philosophies and the nature of its
administration. We know that the scope of the crime can be coupled with the
socio-economic status, psychological condition and the influences undertaken by
the criminal before the commission of the crime. But when heinous crimes occur
that challenge the very basic principle of humanity, it is important to award
the criminal with a befitting punishment which balances the call of the
society, the purpose of justice and the need of the hour. This, of course, may
appear retributive or at times a little revenge-seeking but in reality, is
purely deterrent and preventive in nature.
The emblem inscription of the
Hon’ble Supreme Court of India reads, “Yato
Dharmastato Jayah”[10]
which occurs in the Hindu epic the Mahabharata and is understood as "Where there is Dharma, there will
be Victory". The ancient Indian penal philosophies pressed upon the
principle of upholding the dharma and therefore, whenever punishment is awarded
it is based upon this principle that has guided and will guide the Indian legal
system for generations establishing the Western concept of a Reformatory
punishment though how retributive it may seem. It depends upon the situations
and the shreds of evidence present themselves to objectify it through
deterrence or prevention. The best for society is ensured in the process.
Therefore, though we must update the penal laws to accommodate the best of the
befitting laws for the crimes we must ensure that the purpose of the penal laws
is upheld through their usage.
Bibliography
1.
Studies
in Jurisprudence & Legal Theory by DR. N.V. Paranjape, 9TH
edition, Central Law Agency
2.
Jurisprudence
& Legal Theory by Dr V.D. Mahajan, 5TH edition, Eastern Book
Company
3.
Jurisprudence
& Legal Theory by G.C. Venkata Subbarao, 9th edition, Eastern
Book Company
4.
Criminology
& Penology (including Victimology) by Dr N.V. Paranjape, 2019 edition,
Central Law Publications
5.
The
Code of Criminal Procedure, 1973
6.
The
Indian Penal Code, 1860
Article Information
THE RETRIBUTIVE WAY: A THEORETICAL UNDERSTANDING OF HOW THE MOST OBSOLETE FORM OF PUNISHMENT LINGERS IN THE MODERN PENAL SYSTEM (By-Soham Banerjee)
Authors: Soham Banerjee
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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