THEORIES OF PUNISHMENT WITH SPECIAL REFERENCE TO CAPITAL PUNISHMENT

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This article is written by Chhavi Tripathi of 3^rd Semester of Atal Bihari Vajpayee School of Legal Studies, CSJM University

ABSTRACT

“In our felonious justice system, the process is the punishment”- CJI NV Ramana[1]

The crime rate in India is increasing at an intimidating rate. According to the report by the National Crime Records Bureau (NCRB), the total number of crimes reported in India was 445.9 per 100,000 people. The state with the Highest crime rate in India was Uttar Pradesh with 112.7 per 1lakh people, Kerela[2]. In a society, there are certain rules and regulations that every person needs to follow and every community has its way of dealing with and controlling crime but the first thing that people associate with any crime is punishment, hence punishment should be severe regardless of any community to create fear in the minds of the people that even a petty crime can have severe consequences. Down lane history, we have seen that it would be impossible to tame barbaric offences without punishments. Hence it seems impossible to imagine a world without punishment as an unpunished crime leaves the path of crime open. As a child, we all must have been scolded by our parents when we didn’t complete our homework or play out for hours but will it work if someone kills his friend, is scolding enough in that scenario? The answer is no, by now we have understood that according to the severity of offences, there are punishments. what are the various theories of punishments and how do they develop? In this article, I will discuss in detail what are the theories of punishment concerning Capital Punishment.

Keywords: Crime rate, NCRB Reports, Punishment, severity of offences, fear of consequences, theories of punishment, capital punishment, Criminal justice, criminal prevention

INTRODUCTION

What is the death penalty?

Death penalty refers to the lawful procedure where an individual is killed by the state as a punishment for their wrongful act. A man once executed for a wrongdoing can never be breathed life into back.

In India, Article 21 of the constitution named ‘Protection of life and personal Liberty mentions “No person shall be deprived of life and personal liberty except as according to the procedure established by law”. This article of the constitution enshrines the right to life and personal liberty of every individual in India. to capital punishment. The constitutional validity of capital punishment has been challenged several times in India.

The India Penal Code, of 1860 deals with death rulings for various offences. Some of these are Conspiracy(s. 120B), waging war against the Government of India(s.121), abetment of mutiny (s. 132), murder(s. 302), dacoity with murder(s. 396).[3]

UNPACKING THE TERM PUNISHMENT

In non-professional terms, punishment is the infliction or imposition of a penalty as retribution for an offence. It is inherent to the criminal justice system. Punishment is the consideration; it is an output of the wrongful act. Wrongful means any illegal act in simple terms. Punishment is the infliction of some kind of pain or loss upon a person for a misdeed (i.e., t. Punishment may take forms ranging from capital punishment, forced labour, and mutilation of the body to imprisonment and fines[4]

HLA Hart has handed for 5 key elements that shall be present within a punishment and these elements are as follows:

1. the punishment that is sanctioned against an individual shall be such that it can cause unwelcome pain or eventually make him realize the misdeed that has been committed by him against other individuals.[5]

2. The punishment shall only be advanced against the individual only if he has committed an offence against the legal rules of a state.

3. The person against whom a punishment has been passed shall be the factual lawbreaker or wrongdoer for committing that crime for which the punishment has been granted

4. the punishment should only be granted by human beings against the lawbreaker and so the offender cannot choose his punishment on his own.

5. The punishment can only be administered against the offender or a lawbreaker by a legal authority established within the legal system of a state. As per Westmarch, a punishment is a suffering that is usually foisted against a criminal, in the name of the society in which he is living or is a permanent member of.

THEORIES OF PUNISHMENT

There are several theories of punishment and when it comes to capital punishment, these theories are often discussed in the context of justifying its use. Here are some key theories regarding capital punishment;

Retribution theory
Deterrent theory
Incapacitation theory
Rehabilitation
Utilitarianism
Retributive theory of punishment

An eye for an eye would turn the whole world eyeless or blind– Mahatma Gandhi. This proposition argues that punishment should be proportionate to the crime committed. In the environment of capital punishment, the proponents of retribution believe that some crimes are so heinous that only the appropriate punishment is the taking of the lawbreaker’s life. They view it as a way to balance the scales of justice. The formulation in around 1875 B.C. of the code of Hammurabi i.e., an eye for an eye and a tooth for a tooth, grounded on the doctrine Lex Tolionis. It has been prompted by the general public that an offender that a criminal deserves to suffer the same victim did.[6] It seeks to achieve a moral balance by ensuring that the punishment inflicted on the offender matches the moral wrongdoing of the crime.

Those legal interpreters who support the theory find it appropriate to punish the criminal with such a punishment that could make him suffer to the same extent that the victim of the crime suffered.

Imagine a person is convicted of a serious crime such as murder. According to the retributive theory of punishment, the punishment for that person should be commensurate to the harm caused. The severity of the punishment is meant to reflect the seriousness of his crime, not to prevent future crime or rehabilitate him but the punishment should be as a consequence.

Positive and negatives of the retributive theory of punishment

Positives:

Morally correct- the intuitive notion is people should “get what they deserve”. This gives a straightforward remark that punishment should be in proportionate to the wrongdoing.
Fairness- Treating individuals equally, emphasizes that punishment should be equal and fair.
Satisfaction- This theory aims at providing victims and their families a sense of satisfaction by giving the offender equal punishment for what he did.

Negatives;

Potential for injustice- Punishing individuals for what they did seems morally acceptable but illegal under such laws can be seen as unjust.
No Rehabilitation- retribution doesn’t prioritize the rehabilitation of offenders in society.
Risk of over-punishment- there is a chance of overly harsh punishment on offenders.

Case laws:

Nirbhaya judgement[7], the Nirbhaya case which was a highly publicized gang rape case in India, the judgement in this context reflected the retributive theory of punishment by seeking to balance the scale of justice. The perpetrators were sentenced to death as a proportional response to the heinous crime, aiming a sense of retribution to the victims’ families. The court’s response to award capital punishment was seen as a demonstration of the seriousness with which society viewed the crime.

Capital punishment sparked a wider debate as to the effectiveness and ethics of the death penalty, with some arguing that it serves as retribution, while others contend that it doesn’t align with the principles of human rights and rehabilitation.

Mohammad Ajmal Amir Kasab V. State of Maharashtra[8]

The case of Ajmal is notable for its application of the retributive theory of punishment. The court in this case considered the severity of the crime as extreme provided that the scales of the terrorist attack and the loss of innocent lives hence Kasab was sentenced to death as a proportionate response to the heinousness of his actions. The court considers that the act of terrorism deserves the most severe punishment available under the law.

Deterrent theory of punishment

The term deter means to discourage or prevent someone from doing something, it’s like putting up a barrier or obstacle to stop them. The primitive methods of punishment believe that if severe punishment is inflicted on the offender, it will deter the offender from repeating the crime. One of the main aims of deterrence is to create fear in the minds of people by giving the offender harsh punishment so that an example is set in society for not committing the same crime.[9]

Jurisprudential school of thought

The most important question arises who propounded the deterrent theory of punishment?

Cesare Beccaria who is an Italian philosopher is often considered as one of the earliest proponents of the deterrent theory of punishment. He supported proportionate punishments rather than cruel and harsh punishment. Jeremy Bentham who is known as the founder of this theory states that a hedonistic conception of man and that man as such would be deterred from crime if punishment were applied swiftly, certainly, and severely. But being aware that punishment is evil, he says, if the evil of punishment exceeds the evil of the offence, the punishment will be unprofitable; he would have purchased an exemption from one evil at the expense of another.

Aspects of the Deterrent theory of punishment

General deterrence- this aspect focuses on the witness principle that when the general public witnesses the punishment inflicted on others, they will be deterred from engaging in similar crimes.
Specific deterrence- This aspect focuses on the offender it states that deterring the individual offender by punishing so that the offender does not engage in future criminal activity of the same kind.

Case laws

Bachan Singh v. State of Punjab[10]

Being one of the landmark cases, the Supreme Court stated that the death penalty should only be imposed in the rarest of rare cases where the crime is heinous and the convict’s character indicates no possibility of reformation.

Tukaram vs. the State of Maharashtra[11]

In this case, the Supreme Court emphasized the criminal’s potential to reform when determining the punishment. Hence it reflects an equilibrium between general and specific deterrence acknowledging the possibility of rehabilitation.

INCAPACITATION THEORY OF PUNISHMENT

Meaning of ‘Incapacitation’

The word Incapacitation means preventing an offence to create fear in the mind of people from committing the same act, it refers to removing the person from society either temporarily or permanently. It aims to prevent offenders from committing future crimes by incapacitating them. Capital punishment ensures that an individual can never harm society again.

It is essential to understand that the Indian legal system doesn’t explicitly use the term ‘Incapacitation theory” as some Western legal systems do. This theory has usually and statedly taken the form of punishment, which is considered the best form of punishment. It is reserved only for those people who are sentenced to life imprisonment.

Legal principles that align with the idea of incapacitation in India

Preventive detention laws– India has certain laws that allow the preventive detention of individuals for example National Security Act(NSA) which is a well-known law that enables authorities to detain certain individuals without trial for a while.
Life Imprisonment– In India life imprisonment means imprisonment for the entire natural life of the offender. It is a form of incapacitation since it is believed that offenders do not pose a threat to society by being released on parole.
Repeat offender cases– during sentencing decisions Indian courts sometimes take note of the offender’s history of committing similar offences and whether the offender has responded well to the rehabilitation efforts if not courts impose a longer sentence se to incapacitate the offender and protect the society

Key findings

Here the question arises can incapacitation reduce the crime rate?

The study shows that imprisonment can temporarily reduce an offender’s ability to commit the crime with some suggesting that recidivism rates of around 40% to 60% within a few years of release. Studies also throw a light on prison overcrowding due to high incarceration rates which ultimately affect the effectiveness of incapacitation and raise concerns about the conditions within prisons.

REHABILITATION THEORY OF PUNISHMENT

As the name suggests this theory emphasizes the possibility of reforming offenders and in contrast, capital punishment is criticized for not allowing the opportunity for rehabilitation as it permanently removes the offender from society.

This theory was widely criticized in the United States in the 1970s but it had gained acceptance that a careful implementation of rehabilitation could reduce recidivism[12]. This theory advocates for therapeutic interventions including factors like motivations, background and psychological needs, unlike punitive measures like incarceration.

The rehabilitation programs should be continuously evaluated to assess their effectiveness. The critics argue that the rehabilitation programs are not a boon for all offenders especially those who have committed serious crimes.

Criticism

The very first argument is that it doesn’t emphasize the causes of the crime, but this criticism seems invalid as it doesn’t seem necessary to know the causes of a particular event.
the second argument is that the techniques of rehabilitation have not proven that they can reduce recidivism while this is true as it does not warrant the no repetition of a crime.
the third argument could be that offenders under the rehabilitation program are considered mentally ill when in fact majority are normal as there is a general belief that mental illness is in the realm of rehabilitation.
The rehabilitative philosophy is inconsistent with the fair and consistent dispensation of justice.[13]

UTILITARIAN THEORY OF PUNISHMENT

Developed by Jeremy Bentham, who believed that human beings were motivated by pleasure and pain and sought that all humans pursued pleasure and sought to avoid pain. Utalitarism evaluates punishment based on the overall societal good it produces.

Utilitarians reject the idea of retribution, A utilitarian would argue that capital punishment for the crime of murder is preferable to imprisonment, because it prevents the criminal from being released from prison and murdering again. From a utilitarian perspective, the taking of one life through capital punishment is justified if it prevents the loss of other innocent lives.[14]

FINAL THOUGHTS

In conclusion, the various theories of punishment offer distinct perspectives on the purpose of imposing penalties on offenders. No one theory could be applied or blindly followed but as per the severity of the crime and the societal values or legal systems it should be done on a priority basis. In practice, many criminal systems combine the theories to achieve a balanced approach to punishment.

REFERENCES