Mere
denunciation of crime is not enough; it must be pushed to its logic end that
crime does not pay by punishing the offenders. Punishment means, “It is the
redress that the commonwealth takes against an offending member”[1]Punishment
is some sort of social censure and not necessarily involving physical pain. H
Kelson in his General Theory of Law and State described “sanction is socially
organized consists in a deprivation of possession- life, freedom, or property”[2]
According to Jeremy Bentham punishment is evil in the form of remedy which
operates by fear.[3]
Johan Finnish has said that delinquent behavior of a person needs to be taught
lesson not with melody but with iron hand. “There is the need of almost every member
of society to be taught what the requirement of the law—the common path for
pursuing the common good—actually is: and {relatively!} Vivid drama of the
apprehension, trial, and punishment of those who depart from that stipulated
common way”[4]
Various
reasons justify punishment but criminal law as sanctions has one important
object, is to eradicate the self-help and private sanctions.[5]
Once society realizes that there is need of sanction, it must be applied
collectively, officially, legally and publicly.[6] Different authors have offered various
theories of punishment but those can be broadly classified as non-utilitarian
and utilitarian.[7]
What distinguishes these theories is their focus and goals: utilitarian
theories are forward looking concerned with the future consequence of
punishment; non-utilitarian theories are backward looking, interested in the
past acts and mental states; and mixed theories are both forward and backward
looking.
Punishment is awarded to reduce crimes and used, as means to an end,
is the claim of utilitarian. George Hegel and Immanuel Kant criticized and
rejected the utility theory, presented the contrast retributive theory of
punishment, which is of non-consequentialist or non-utilitarian on the premises that punishment, is not means
but end in itself. This tug of war between the George Hegel and Immanuel Kant
on one side and Jeremy Bentham on the other side is carried even by 20th
centaury scholars. In 1949, Lord Denning appearing before the Royal commission
on ‘Capital Punishment’ expressed the following view:
The punishment inflicted for
grave crimes should adequately reflect the revulsion felt by the great majority
of citizen for them. It is a mistake to consider the object of punishment as
being deterrent or reformative or preventive and nothing else … The ultimate
justification of any punishment is not that it is a deterrent, but that it is
the emphatic denunciation by the community of a crime: and from this point of
view, there are some murders which, in the present state of public opinion,
demand the most emphatic denunciation of all namely the death penalty.[8]
Criminal law Professor Glanville Williams of Cambridge University
Retributive
theory of punishment.
Vengeance theory- It is a concept of
primitive society which consists of injury inflicted by way of retaliation by
victim of crime on actor of crime, which requires the existence of victim as
well as a wrong doer. Its idea is severity of punishment where victim of crime
inflicts the retaliatory harm that expunges the crime. Modern legal system has
given up the vengeance theory because of its heinous, barbaric, and uncivilized
nature of punishment.
Retributive theory.
Retributive
theory is based on rights, desert and justice.[11]The
guilty deserve to be punished, and no moral consideration relevant to
punishment outweighs the offender’s criminal desert is the philosophy of
retributive theory.[12]Retributive
theory replaces private punishment by institutlising punishment on the structure
of law and state in organized manner. Unlike vengeance theory, Retributist
focuses on the wrong doer not on the victim of wrong which makes difference
between the ‘lex talionis’ and ‘jus talionis’. Immunal Kant who
discussed the concept of punishment in first half of The Metaphysics of Morals,
for him just actions are deduced from the concept of morals and punishment
should satisfy the rationality of moral and justice. Guilt is a sufficient
condition for justifying punishment. It is worth to quote his famous lines. [13]
Even if a civil society were to
dissolve itself by common agreement of all its members (for example, if the
people inhabiting an island decides to separates and disperse themselves around
the world), the last murder remaining in the prison must be executed, so that
every one will duly receive what his actions are worth and so that the
bloodguilt thereof will not be fixed on the people because they failed to
insist on carrying out the punishment; for if they fail to do so, they may be
regarded as accomplices in this public violation of justice.
For Kant, human being is free man,
and enjoys rights in the legal system based on the dignity of humanity. When
any person interferes with the others right, he forfeits and gives up his own
right and submits himself to others interference in his life as legitimate.
Kant calls it as ‘moral authorization’-Befugins
to interference.[14]
Violator of Criminal Law has derived benefit because other persons have obeyed
Criminal Law; therefore, he owes debt to society in the form of punishment,
which is condition for his reentry into the community.[15]This
analysis takes closer to another principle of expiation. The penalty of wrong doing
is a debt, which offender owes to his victim. When punishment has been endured,
the debt is paid, the liability is extinguished. Doctrine of just desert based
on principle that criminal having committed crime in the past deserved to be
punished. The worlds deserved puts limitation on the power of inflicting harm
and makes just or fair that exhibit the humanitarian aspect of the theory,
which is the base for wider acceptability in society. Retribution is no
exception to the principle of every theory has demerits. Weakness of
retribution is focusing more on criminal, his guilt, suffering, and his feelings
likely to glorify them. Total rejection of claim of victim of crime, potential
victim, and potential criminal undermines the nature of Criminal Law. This
theory focuses on what had happened but does not on what has to be done in
future for prevention crimes because some time punishment ought to be
considered as means to end. Kant categorically rejected punishment as means to
end because it amounts use of man for others, which is against the principle of
human dignity. Retributist fails to take notice of Criminal law’s future
direction.
Retribution is not cruel, because
it treats a criminal with dignity.[16]
It gives him chance to expiate his crime by suffering. The doctrine of desert,
fairness, and proportionality reject cruel, barbaric, and uncivilized
punishment of vengeance theory. Retributive theory puts substantial limitation
on punishment. When the law and State inflicts harm on the wrong doer in fair
manner, how retributive theory is called reflection of vengeance theory. Law
condemns the act of criminal by awarding punishment, if incidentally that
satisfy the vengeance of victim of crime, the retributive theory cannot be
criticized for that because they never claimed it. Hegel has rightly objected
by saying retributive is nothing but concept of vengeance is superficial.[17]
The following are the merits and demerits of the retributive theory.
Merits.
1.
The theory is very simple. Punishment is an end in
itself but Utility theory is means to an end. Therefore, utilitarian theories
are evaluated on parameters of success and failure. This question does not
arise in retributive theory.
2.
Retributive punishment is neither cruel nor barbaric
but civilized because inflected punishment is proportionate to the crime that
is just. Utility theory recommends more punishment than the profit of crime.
3.
Retributive is impartial and neutral. By inflecting
proportionate punishment to the crime, it considers the interest of wrongdoer
and society equally. Reformative theory gives more weight to interest of
criminal and deterrent theory priority would be social interest than criminal.
4.
Retributive is based on the Roman doctrine of Poena sous tenere debet actors et non alios
means punishment belongs to the guilty, and not others. It punishes voluntary
acts and excludes involuntary acts based on less blame worthy acts like, act of
insane person or immature person. Utilitarian demands punishment for every kind
wrongful act either intended or unintended. So innocent is likely to be
punished which is harsh.
5.
Retributist always treat the human being with dignity
and an honor by saying the punishment is an end in itself not means to an end.
Utilitarian treat the person either commodity or animal because his punishment
used as means to prevent other crimes, which degrades the human value.
6.
Hallmark of retributive theory is its nature of mercy.
Once criminal pays his debt to the society in the form of punishment, his sin
is expiated and admitted back to mainstream of society again. This kind of
philosophy is missing in the deterrent punishment.
Demerits,
1.
Retriubutist have failed to elaborate any guidelines or
principles for proportionate punishment that makes difficult task for judges to
measure punishment for crimes.
2.
Object of punishment is not only punishing the criminal
but to prevent the crime in future also. Punishment is means to an end not an
end itself.
3.
Kant philosophy of murder warrants death sentences is
not acceptable to the Modern civilized society.
The retributive theory propagates
human being feelings that justice is most essential for sustaining legal order
in society. This is what reflected by the Indian society in Ruchika and Jessay
cases. In Ruchika’s case, the trial court pronounced six months sentences for
retired DGP of Haryan SPS Rathore for molesting girl of 13 years age, Ruchika
who latter committed suicide. Judgment of trial court shocked Indian civil
society and condemned it with one voice that forced the prosecution to file appeal
in the High court that enhanced the sentences to 18 months. In Jessica lal
modular murder case where the Manu Sharma and others murdered her in an open
bar, trial court acquitted all the accused on ground that there was no
evidence. People shocked, stunned and criticized the judgment of the court.
Delhi High Court by considering the outrages and stunning remarks of people
conducted the proceedings on daily bases and passed sentences of life imprisonment on the accused,
which is confirmed by Supreme Court on appeal.[18]Two
cases clearly send message that people’s hunger for justice, if not honoured
the society will not honour Criminal Law. Hart has put it same logic in
different words,
“Sanctions are
therefore required not as the normal motive for obedience, but as guarantee
that those who would voluntarily obey shall not be scarified to those who would
not. To obey without this, would be to risk going to wall.[19]
Retributive theory based is on
the doctrine of Roman law, nulla poens
sine leges and nulla peona sine
crimen which means no punishment out side the law, and no punishment except
for crime.[20]
Undue sympathy to impose inadequate punishment would do more harm to the
justice system that undermines the public confidence in the efficacy of the law.[21]Sentencing
process be stern where it should be, and tempered with mercy where it warrants
to be, otherwise departure from Just desert principle results into injustice.[22]Any
attempt to down play the importance of retributive as vengeance concept is
unfair. Retributive upholds and preserves the greater social valves. Failure to
satisfy the public sense of justice may lead to loss of respect for authority
and persons likely to take justice into their own hand that would be reverting
clock to back to primitive society.
Utility theory of
punishment
Utilitarian believes the
punishment is means to an end and seeks to punish the offenders to discourage
or deter future wrongdoing. Great jurist
Jeremy Bentham was instrumental behind the utility theory said.
The principal
end of punishment is to prevent like offences. What is past is but one act: the
future is infinite. The offence already committed concerns only a single
individual; similar offences may affect all. In many cases it is impossible to
redress the evil that is done; but it is always possible to take away the will
to repeat it; for however great may be the advantage of the offence, the evil
of the punishment may be always made to out-weight it. [23]
Reduction or
prevention of crime has to be ultimate object of punishment that has to look
forward not backward as presented by retributist. These theories can be categorized
as, Reformative, [corrective or therapy] Deterrent, preventive, and
compensatory.
Reformative theory of punishment
The object of punishment has
been considerably under the process of changes from the last centuries because of
the welfare State concept. Let us give human touch to Criminal Law and reduce
the brutalities of punishment is today’s philosophy of law.[24]
Reformist looks at sanction as instrument of rehabilitation and tries to mould
the behavior of criminal on the premises that criminal is not born but made by
the environment of society. Therefore, it is responsibility of society to
reform him by adopting certain suitable methods. The increasing understanding
of the social and psychological causes of crime has led to growing emphasis on
reformation rather than deterrence. Less frequent use of imprisonment, abandonment
of short sentences, and attempt to use prison as training rather than a pure
punishment, and greater employment of probation, parole and suspended sentences
are evidence of reformative trend.[25]
This approach rejects the
deterrence and retributive elements of punishments and impeccably advocates
reformative approach on simple idea that, ‘we must cure our criminal, not kill
them’.[26]The
reformative theory is reaction to the deterrent theory, which has failed to
take into consideration of the welfare of criminal. The real objection to
reformation is simply that it does not work.[27]
High hopes of reformative theory early enthusiasts never materialized and met
with repeated failure. Reformation requires combination of too many disciplines
and their attempt has failed to deliver goods yet haunt is on for right
combination to make theory fruitful.[28]
Researchers have concluded that no known or effective methods for reformation
of convicted criminal had been demonstrated “we know nothing about deterrent or
reformative effects of any mode or variety of treatment.[29]
There are number objections against reformative theory.
1.
Reformative theory expects better infrastructure and
facilities in prison, proper co-ordination between different discipline and
persistent effort on their part to mould criminal. It requires huge investment
which poor country cannot afford it.
2.
Millions of innocent people who have high regards for
law are finding difficult to get basic amenities postulates ethical
justification for providing better facilities inside prison.[30]
3.
Moreover, The rationality of the theory is more towards
incentives for the commission of crime rather than prevention.[31]
4.
Reformation can workout on those people who can be
reformed, there are people who cannot be reformed like hardcore criminal,
highly educated, and professional criminals. [32].
5.
This theory neglects potential offenders and persons
who have committed crime but not within the arms of law. Further, it overlooks
the claims of victims of crimes.[33]
6.
Corrupt social environmental is responsible for crime
but not individual responsibility, is philosophy of reformative is hard to
digest.
Nevertheless,
it would be unfair to dismiss the noble concept of reformation as a total
failure. All are familiar with the instances in which unskilled, uneducated and
apparently incorrigible criminals have developed skills in prison, which have
transformed them into highly useful person.
Deterrent theory of punishment.
The act that takes away the power of
committing injury is called incapapaction, is in the form of remedy operated by
the fear should be the object of punishment which is called deterrent theory.
Bentham went to the extent of depriving the criminal’s power of doing injury by
awarding death sentences.[34]
Bentham treats the committed offences as an act of past, that should be used as
opportunity of punishing the offenders in such way that the future offences
could be prevented.[35]Glanville
Williams says deterrence is the only ultimate object of punishment. “Punishment
[sanction] is before all things deterrent, and the chief end of the law of
crime is to make the evildoer an example and warning to all that are like
minded with him.”[36]This
kind of threat is commonly described as ‘specific’ or ‘individual’ deterrence.
Specific deterrence works in two
ways. First, an offender would be put in prison to prevent him from committing
another crime for specific period. Second, this incapacitation is designed to
be so unpleasant that it will discourage the offender from repeating his
criminal behavior. When individual deterrence is used as means to send message
across society is called ‘general’ or ‘community’ deterrence. The higher
percentage of criminal being caught and punished would enhance the credibility
of sanctions. Crime does not pay and honesty is the best policy that is message
deterrent theory tries to communicate to society. Once deterrent as painful
sanction is accepted, it would oppose better facilities in prison as suggested
by the reformist.
Utility of deterrent theory.
Imprisonment as deterrent factor
may provide temporary relief as long as criminal inside prison because motive
of crime cannot be destructed by fear factor. Sanction as pain some time
produces ironical results. It is thought that punishment would deter offenders,
in realty it hardens the criminals because once criminals accustomed with punishment,
deterrence loses its strength on such criminals.[37]
Under these circumstances, reliance on rehabilitation and prison reformation
would give better result. The most effective deterrent punishment is death
sentences where as imprisonment has not only deterrent value but reformative
also. The strongest critic against deterrent is that it has failed to reduce
crimes. Should it be given up? The conclusions are based on the percentage of crime
rate, which are available. The tragedy of deterrent theory is that number of
criminals it has failed to deter measures its efficacy but not by number it has
in fact deterred.[38]
The classic illustration from earlier times is the number of pickpockets went
up when people gathered to watch public hanging of pickpocketers. It is difficult to collect the data of persons
who have deterred. Deterrent theory success can be measured by taking into
consideration of data when there is breakdown of law and order. Just consider
the number of crimes committed aftermath of Indra Gandhi assassination. Same
thing happened in Gujarat when the Godhra
incidence took communal shape that led to break down of law and order. Therefore,
the question in case of pickpocketers is not how many pickpockets exist in
spite of the penalty against them, but how many more would have been there
without such penalty. Glanville Williams holds the same view by saying that how
much worse off we should be if we had no social provision for punishing
evildoers.[39]
Abolition of Death Sentence.
Powerful
argument for the abolition of death penalty is based on the Report of the Royal
Commission on Capital Punishment. “[T]here is no clear evidence … that the
abolition of capital punishment has led to an increase in the rate, or that its
reintroduction has led to a fall”.[40]
In pursuance of this report, the British government abolished death sentences
by passing The Murder [Abolition of Death Penalty] Act 1965. Statistics show
that death sentence has not produced the desired result. If it really does
deter, then there ought to be a lesser number of homicide in places where the
penalty is retained than where it has been abolished.[41]
In India ,
crime rate is high in spite of having death sentences where as European
countries abolition of death sentences has not resulted into reduction of
crime. The Indian Law Commission cites the following reasons for retention of
death sentences.[42]
1.
Capital punishment acts as deterrent. “Do we want more
of Murders in our country or do we want less of them.
2.
Danger criminals need to be eliminated to protect the
society.
3.
The life of police and prison staff cannot be put into
risk by not awarding death sentences to danger criminals.
4.
If danger criminals are not hanged, they are likely to
repeat the offence after their release.
5.
Where death sentence is abolished, the crime rate is
very low but that cannot be in India .
6.
Public opinion is substantially infavour of capital
punishment otherwise, it leads to lynching.
7.
Imprisonment of criminals leads to problem of prison
administration and taxpayer money has to be utilized for maintenance of
criminals that is unjust.
8.
Capital punishment is a painless and less cruel than life
imprisonment.
There are sum
justifiable grounds for abolition of death sentences.
1.
It is revengeful and destruction of life which is wonderful
creation of God.
2.
It is immoral. Society has no right to take life that
is incompatible with modern morality and human rights.
3.
India
believes in non-violence philosophy.
4.
Death sentence is unjust for family of offender.
Irretrievable
error of justice is most practical reason for its abolition.[43]Unlike
life imprisonment, executed death sentences would not give opportunity to
judiciary to correct its error of judgment. In the late 1990s, a powerful new
challenge to death penalty emerged the risk of executing innocent people. Aided
particularly by the availability of DNA testing, more than 116 death raw
prisoners have been exonerated [declared to be not guilty] and realized from
prison from 1977 to 2004 in USA .[44]
This information leads to the logic that some other innocent might have been
executed. Abolitionist of death sentence encases on this. The main reason for
earlier day’s death sentences is lack of prison infrastructure. With arrival of
means and facilities to confine criminals indefinitely, even for life, abolitionist
started questioning ethical proprietary of death sentences and right of society
to take life in order to protect life.[45]
Many experts
have questioned whether a capital punishment has any greater deterrent value
than a sentence of life in prison without parole. When criminals are sentenced
for life, long sentences inside the prison without liberty, luxurious comfort,
isolated from family, friends, and society that would be more ideal painful
deterrence than death. Inconsistency in awarding death sentences strengths the argument
of abolitionist. USA Supreme Court in Furman
v. Georgia by highlighting these remarks and suspended death sentences in 1972. It is worth to quote
Justice William Doughlas own words,[46]
It is the poor, the
sick, the ignorant, the powerless, and the hated who are executed…[The law]
leaves to the uncontrolled discretion of judges and juries the determination of
whether defendants committing these crimes should die or be imprisoned…These
discretionary statutes are unconstitutional.
Indian Supreme Court has laid down that death sentences
would be given in ‘rarest of rare cases.’ Furtherer court held that the judges
discretionary power to impose the death sentences, are well guided by the IPC,
Indian Evidence Act and Crpc which do not offend Articles 14 and 21 of the Constitution.[47]
Yet people mind is not free from the fact that it is judges who decides between
life and death of criminals because even in similar cases there is different
findings. In Dhanjay case who raped
and killed 14 year girl was given death sentences. In State of Maharastra
Certainty of punishment is much more important than the
severity of punishment otherwise death sentences would not have the desired
result. Factors like, appeal, revision, mercy petition, and delay in execution
of death have diminished the deterrence of death and ultimately became Constitutional
grounds for converting the death sentences to life imprisonment.[50]Another
ground against death sentences that, it is carried in private and relatively
low number of execution that lessens the deterrence value of punishment.
Counter argument is that, it is in fact result of abolitionist’s opposition. State
tries to satisfy the opponents of death sentences. Hence, it is executing
privately and rarely.
Bentham justifies death sentences in extraordinary
occasions like civil wars.[51]
When the life itself is at risk, any threat of lesser sanction and confinement
is unlikely to have any great impact on the soldier tempted to save his life by
deserting the battle of war field.[52]Terrorist
incidence, like 9/11 and 26/11 demand nothing shorter than death sentences.[53]America ’s
2/3rd population supported the death sentences.[54]
India
has not abolished death sentences even though it has signed the International
Covenants on Political and Civil Rights. Proponents of death sentences believe
that the law should place less value on the life of convicted murder than on of
victim. Indian Law Commission observed, “Argument that may be valid in respect
of other courtiers may not necessarily be valid for India . Unlike Western Countries,
education, prosperity, homogeneity and viability are sadly absent in many parts
of India .
Punishment should bear a just proportion to the crime. Therefore, capital
punishment is only punishment for those who have deliberately violated the
sanctity of human life”.[55]
Further, it said, even if the principle of abolition is accepted the time is
not yet ripe in India .[56]
Law Commission concluded that State has every right to execute certain violent
criminals in order to uphold and preserve greater social value. Failure to
satisfy the public sense of justice may lead to loss of respect to authority of
law.
Preventive theory of punishment.
Even
utilitarian like Bentham advocated the preventive remedies which tend to
prevent offences.[57]That
some individual need to be restrained is hardly debatable proposition. Even
staunchest advocate of the reformation theory would not contend that a
convicted unreformed dangerous criminal ought to be without restraint while he
is being reformed. The target of sanction as incapacitation is criminal himself
and protection comes by physically separating criminal from the victim and
potential victim that denies him ability and an opportunity to commit further
crime.
Preventive
philosophy is the best mode of punishment because it serves as an effective
deterrent as also useful preventive measures. The effective of preventive
theory much depends upon promptness and proportion factors.[58]The
delay in inquires or investigation by the public authority makes sanction
ineffective. The effectiveness of sanction is further scaled down as courts
grants bail to accused on the ground that accused presumed to be innocent until
guilt is proved. There is considerable dispute, as to who should be restrained
and how long. Confinement should involve the least restraint needed to furnish
reasonable protection against crime.[59]The
naked truth is that protection can never be absolute. Certain amount of crime is
inevitable and society must take chance against them. Effective incapacitate
depends upon various factors like, criminal’s history, background, and
personality. In spite of all these things it is not possible to predict
accurately whether or not a particular criminal will repeat crime.
Incapacitation should not be disproportionate, wasteful and expensive.[60]Unless
restraint is either permanent or is coupled with a meaningful rehabilitative
program imprisonment will not restrain criminal conduct, but will merely
postpone it.[61]Incapacitation
affects ability and an opportunity to commit criminal act, but has no influence
on emotional and criminal intent and expectation of profit. Therefore,
incapacitation is being temporary than permanent.
Compensatory theory or restitutive theory of punishment.
The criminal justice system is
incomplete, is major allegation made by the victims of crime, which is in fact
true. The entire focus of the criminal justice system is on the offender, to
punish him or to seek his reformation and rehabilitation with all the resources
and goodwill available through courts and other governmental and non-
governmental agencies.[62]The
victims of crimes are, on the other hand, forgotten people in the system.
President Gerald R. Ford sent the following message to the American Congress in
1975,
“For too long, the law has centered its attention more on the rights of
the criminal than on the victims of the crime. It is high time we reversed this
trend and put the highest priority on the victims and potential victims”[63]
Compensation to
victim of crime rests primarily on two grounds. Firstly, a criminal who
inflicted injury against persons or property must compensate for the loss, and
second, a State that failed to protect victim must pay compensation to him. The
United Nation General Assembly in 1985 adopted the declaration known as “Basic
Principles of Justice for victims of Crime and Abuse of power” which is called
as Magna Carta of Rights of victims.[64]
Principle 9 of the declaration provides “Government should review their
practices regulations and laws to consider restitution as an available
sentencing option in criminal cases in addition to other criminal sanctions.” Such
a duty of State towards victims is more explicitly stated under the European
Convention on the Compensation of Victims of Violent Crimes.[65]
Article 2 of the Convention says, “When compensation is not fully available
from other sources the State shall contribute to compensate”. Such compensation
is to be awarded even if the offender cannot be prosecuted or punished.
Jeremy Bentham
also recognized that compensatory remedies should be object of criminal
justice, which he called it as satisfactory remedies.[66]
Potential offender pays compensation along with ill-gotten gain that would
variably kill the motive of committing crime. COMPENSATION therefore is of the
essence of true deterrent, reformation and a necessary condition of
retribution.
Section of
357[1] of Cr.p.c empowers court to grant amount to victim of the offence out of
fine imposed as part of the sentences. Under section 357[3] of Cr.p.c. court
may nevertheless order accused person to pay a certain sum of compensation to
victim where no fine is imposed as part of sentences. Compensation is payable
to victim of the crime only when fine is not imposed as part of sentences which
is unfair because amount of fine is meager compare to the compensation.
Moreover, incurred expenses of prosecution is deducted form the fine and
remaining amount is paid to victim of crime, therefore, victim gets small
amount that would not amount to justice. Courts have generally restored to
sentences of fine in addition to imprisonment but compensation provision is
invoked seldom because power is discretionary.
Further, there is injustice, when ordered payment of compensation is not
complied by accused, there is no provision in law for imposing penalty for such
non-compliance. On the other hand, non-payment of fine may leads to extension
of period of imprisonment. The Supreme Court in Sarwan Singh v. State of Punjab
The Supreme Court in Delhi domestic working women’s forum v. Union of India Gujarat
and another v.Hon’ble High Court of Gujarat .[69]Justice
Thomas held that Restorative and reparative theories deserves serious
consideration, victim of crime or his
family members should be compensated from the wages earned in prison by the
perpetrator. The court suggested State to enact a comprehensive legislation in
respect of compensation payable to victim of crime. Section 357 Cr.p.c has not
proved to be much effective. Many persons who are sentenced to long-term
imprisonment do not pay compensation and instead they choose to continue in
jail in default thereof. Justice Wadhwa said,
“Criminal justice
would look hollow if justice is not done to the victim of the crime. A victim
of crime cannot be “forgotten man” in the criminal justice system. It is he who
has suffered the most. His family is ruined particularly in case of death and
other bodily injuries. An honor which is lost or life which is snuffed out
cannot be recompensed but then compensation will at least provide some solace”[70].
Time
has come for legislator to act on these directions, enact comprehensive
legislation and provide a security to victim of crime. In recent years, European
and North American Nations have enacted legislations to protect the interest of
crime victim.[71]
Law Commission of India said,
“Victim is fortunate if he gets compensation or even his expenses”[72]
and observed that, “Reparation to the victim of an offence has been receiving
increased attention in recent times. In part, this is due to a realization that
mere punishment of the offender though it may exhaust the primary function of
the criminal law, is not total fulfillment of the role of law”.[73]It
further recommended that Indian Penal Code should be amended by inserting
compensation provision. Mallimath Committee
on reformation of criminal justice system said “system being heavily dependent
on the victim, criminal justice has been concerned with the offender and his
interest almost subordinate or disregarding the interest of victim”.[74]It
added that increased victim satisfaction would, in effect, enhance the
efficiency of the Criminal Justice System.
Conclusions.
The mood and temper of public concerning the treatment of crimes and
criminals is one of the unfailing tests of the civilization of any country.—Sir
Winston Churchill said while addressing the House of Commons.[75]
The justification of punishment possesses one of the most difficult
jurisprudential issues. Different theories of punishment prevalent in various
ages. There are found different justification among different countries
according to variations in culture and civilizations. Variety of punishment is
one of the perfections of a Penal Code. It is cruel to expose the guilty to
useless sufferings when the punishment is too severe; on the other hand, is it
not to cruel still to leave the innocent to suffer?. When the result of such
punishment is too mild to be efficient.[76]
Punishment must be severe enough to act as deterrent but not too severe to be
brutal. Similarly, punishment should be moderate enough to be human but cannot
be too moderate to ineffective.[77]Certainty
of punishment is most important for any legal system that makes the punishment
less severe and deficient in certainty makes punishment more severe. Severe
punishment demands higher standard of proof of guilt. Obviously, convection
rate would be less that is not healthy sign of criminal justice. Certainty of
punishment much depends upon the simplicity of laws and good method of
procedure. Criminal justice must balance between “Justice delayed is justice
denied” and “Hurried justice is buried justice” which are two important basic
concept of criminal justice.
The Malimath committee
observations better explains the nature of criminal justice system prevailing
in India ,
The system devised more than a century back,
has become ineffective; a large number of guilty go unpunished in a large
number of cases; the system takes years to bring the guilty to justice and has
ceased to deter criminals. Crime is increasing rapidly every day and types of
crimes are proliferating. The citizens live in constant fear.[78]
Each theory of
punishment has its own merits and demerits. Therefore, criminal justice would
not be healthy if it relies on any one theories of punishment. Section 53 of IPC
prescribes the different kind of punishment namely, death, life Imprisonment,
Imprisonment of rigorous or simple, forfeiture of property, and fine but does
not mention the object of punishment that depends upon the theory of
punishment. Indian Penal Code prescribes the maximum punishment and leaves
imposition of appropriate punishment in the hands of judiciary, which makes the
IPC flexible. The capital punishment that is part of traditional deterrent
theory is retained and continued in the Indian legal system. Under the new
Criminal Procedure Code of 1973, the court has to record reasons for awarding death sentences that
means life sentence is rule and death sentence is exception.[79]
In Rajendra Prasad v. State of U.P., justice Krishna Iyer
held that giving discretion to the judges to make choice between death sentence
and life imprisonment on special reasons
under section 354[3] CrPC would be violative of Article 14 which
condemns arbitrariness.[80]
Nevertheless, The Supreme Court up held the Constitutional validity of death
sentences in Bachan Sing v. State of Punjab, by saying it does not
violate the article 21 of the constitution because the death sentence is an
alternative and would be imposed in the most heinous crimes.[81]
The ratio of
Bachan Sing case is not yet over ruled that is in accordance with The
International Covent of Civil and Political Rights. Convention does not talk
about the abolition of death sentences but only says that it should be imposed
in most heinous crimes and not arbitrarily awarded.[82]Our
judiciary consistently observes these two conditions by holding the death
sentences should be given in rarest of rare cases. The gray area is what
constitutes rarest of rare is not defined but said it is question of fact. In
series of cases, the Supreme Court tried to lay down objective principles for
determining the rarest of rare case but in fact they have became the subjective
principles in the hands of judges who decides rarest of rare cases. Some time
the courts are unduly harsh while at other times they are liberal. Uniformity
is lacking even in the case of rarest of rare cases while imposing the death
sentences.[83]
The Malimath committee has also having
the view of retaining the death sentences because of new kinds of crime like
Terrorism. Organized crime and Drug trafficking which have threatened the
security of society.[84]More
reliance on deterrent theory would be at the risk of humanitarian. Death
sentences in rarest of rare cases give more scope for reformation theory.
Section 360 of Cr.P.C. gives wide power to court to adopt lenient view in
respect of young offenders. Punishment like rigorous or simple, forfeiture of
property and fine are appropriate to use as the tool of reformative punishment.
The Supreme Court in Narotam Sing v.
State of Punjab has rightly said that reformative approach to punishment
should be the object of criminal law, in order to promote rehabilitation
without offending community conscience and to serve social justice.[85]
However, in M.H. Hoskot v. State of Maharasthara, Supreme Court cautioned
the judiciary for showing more leniency to offenders based on reformative
theory that would amount to injustice to the society. The offences like serious
economic offences and other offences the balance has to be maintained between
the security of society and rights of offenders.[86]
In Dr Jacob George v. State of Kerala
ß
S.G.Goudappanavar, Lecturer gouri1000@gmail.com,
S.C.Nandimathl Law College
[1]
Sethna, M.J. Society and the Criminal,
{3rd Ed} Bombay :
N.M Tripathi Pvt Ltd. [1971] p.236.
[2]
Freeman, M.D.A.Lloyd’s Introduction to Jurisprudence,(17th Ed.)London : Sweet &
Maxwell Ltd.[2001]., p.282.
[3]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd ,[1995]. p.167.
[4].
Johan Finnis, Natural Law and Natural
Rights, Oxford :
Clarendon Press, [2001] p.262.
[5]
Macklin Fleming.Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978] p.102.
[6]
Macklin Fleming.Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978] p.103
[7]
htp/www.legalsutra,org/utilitarian-and-Kantian-concept-of-punishment. Visited
on 21/12/2010.
[8]
Friedman,W.[2008].Law in a Changing Society.(2nd Ed.)Delhi : Universal Law
Publishing Co. Pvt. Ltd.,p.225.
[9]
Glanville Williams,[1983]. Textbook of Criminal Law. (2nd Ed.), Bombay : N.M. Tripathi
Private Ltd. P.126.
[10]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd ,[1995]. p.167
[11]
Amit Bindal, “Rethinking Theoretical Foundation of Retributive Theory of
Punishment”, 51 JILI [2009]. p.310.
[12]
http://plato, Stanford, edu/archives/spr2010/entries/punishment.
Visited on 28-12-2010.
[13]
Murphy, J.G. Retribution, Justice and
Therapy; Essays in Philosophy of Law, Holland :
D Reidel Pub, Co, [1979].p.82.
[14]
Amit Bindal, “Rethinking Theoretical Foundation of Retributive Theory of
Punishment”, 51 JILI [2009] p. p.323.
[15]
Murphy, J.G. Retribution, Justice and
Therapy; Essays in Philosophy of Law, Holland :
D Reidel Pub, Co, [1979]. pp.83-84.
[16]
Harris, J.W. Legal Philosophies,(2nd Ed.)London : Butterworths. [1997]., p.60.
[17]Amit
Bindal, “Rethinking Theoretical Foundation of Retributive Theory of
Punishment”, 51 JILI [2009], p.336.
[18]
http://en.wikipedis.org/wiki/Murder-of-Jessica_lal.
Visited on 25-12-2010.
[20] http://plato,
Stanford, edu/archives/spr2010/entries/punishment. Visited on 28-12-2010.
[21]
Shivaji Shankar v. State of Marashatra
[22]
State of Punjab
[23]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].p.
118.
[24]
Sutherland Edvin H and Cressey Donald, Principles of Criminology, {12th
Ed}, Bombay :
The Times of India Press, [1985] pp.317-320.
[25]
Salmond, Jurisprudence, Fitzgerald, P.J.(Ed.) (12th Ed.),Delhi : Universal Law
Publishing Co Pvt,(2008) , p.95
[26]
Salmond, Jurisprudence, Fitzgerald, P.J.(Ed.)
(12th Ed.),Delhi :
Universal Law Publishing Co Pvt,(2008) , p.95
[28]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978] p. 109.
[29]
Jerome Michael and Mortimer Adler, Crime, Law and Social Science, New York : Harcourt
Brace, [1933].p.49.
[30]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978] p.130.
[31]Salmond,
Jurisprudence, Fitzgerald, P.J.(Ed.) (12th Ed.),Delhi : Universal Law Publishing Co
Pvt,(2008). p.94.
[32]Salmond,
Jurisprudence, Fitzgerald, P.J.(Ed.) (12th Ed.),Delhi : Universal Law Publishing Co
Pvt,(2008). p.97.
[33]Salmond,
Jurisprudence, Fitzgerald, P.J.(Ed.) (12th Ed.),Delhi : Universal Law Publishing Co
Pvt,(2008). p.94.
[34]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].p.
209.
[35]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].p
167.
[36]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p.114.
[37]
Salmond, Jurisprudence, Fitzgerald, P.J.(Ed.) (12th Ed.),Delhi : Universal Law
Publishing Co Pvt,(2008) , p.95.
[39]
Glanville Williams,[1983]. Textbook of Criminal Law. (2nd Ed.), Bombay : N.M. Tripathi
Private Ltd. p. 38.
[40]
Friedman,W.[2008].Law in a Changing Society.(2nd Ed.)Delhi : Universal Law
Publishing Co. Pvt. Ltd.p. 224.
[41]
Sethna, M.J. Society and the Criminal,
{3rd Ed} Bombay :
N.M Tripathi Pvt Ltd. [1971] p.241.
[42]
See, Law commission 35th report on the Capital Punishment. pp. 53-66.
[43]Friedman,W.[2008].Law
in a Changing Society.(2nd Ed.)Delhi :
Universal Law Publishing Co. Pvt. Ltd.p. 225.
[44]
Harry Hendrenson, Capital Punishment,
[3rd Ed.], New York :
Facts on file, Inc, [2006].p.4.
[45]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p.189.
[46]
Harry Hendrenson, Capital Punishment,
[3rd Ed.], New York :
Facts on file, Inc, [2006].p 12.
[47]
Bachan Sing v. State
of Punjab
[48]
[2005] 3 SCC 131.
[49]
Surendra Pal Shivbalakpal v. State of Gujarat
[50]
Triveniben v. State
of Gujarat
[51]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].
p.209.
[52]Macklin
Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p.191.
[53]
Plane highjack and attack on WTO and other various places in USA by terrorist, Terrorist attacks on various
places in Bombay .
[54]
Harry Hendrenson, Capital Punishment,
[3rd Ed.], New York :
Facts on file, Inc, [2006]. p.15.
[55]
See, Law commission 35th report on the Capital Punishment. pp.
53-66..
[56]
See, Law commission 35th report on the Capital Punishment. pp.
53-66.
[57]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].p 167..
[58]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p.171.
[59]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p .173.
[60]Macklin
Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p, .175.
[61]
Macklin Fleming,Of Crimes and Rights. New
York :W.W.Norton&Company.Inc.[1978]. p, .175.
[62]
Ahmad Siddique, Criminology, [5th Ed.], [Ed, S.M.A Qadri], Lucknow : Eastern Book
Company, [2005].p.544.
[63]
Ahmad Siddique, Criminology, [5th Ed.], [Ed, S.M.A Qadri], Lucknow : Eastern Book
Company, [2005].p.544.
[64]
See, the UN General Assembly Resloution no 40/34[1985].
[65]
Opened for signature at Strasbourg
on 24 November 1983, and put into force on 1 February 1988.
[66]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].p 167..
[67]
[1978] 3 SCC 799.
[68]
[1995] 1 SCC 15.
[69]
[1998] 7 SCC 392.
[70]
[1998] 7 SCC 392 at p.399.
[71]
UK enacted The Criminal
Injuries Compensation Act, 1995, in USA , 45 States have compensation
schemes payable to victim of crimes.
[72]
See, Indian Law Commission’s 42nd report on the Indian Penal Code,
p.50.
[73]
See, Indian Law Commission’s 42nd report on the Indian Penal Code,
p.50.
[74]
Malimath Committee Report, Volume 1: Committee on Reform of Criminal Justice
System, [Minster of Home Affairs, Government of India, 2003], p.82.
[75]
Lakshminath, A. “Criminal Justice in India : Primitivism to post
–Modernism” 48, JILI, [2006].p.53.
[76]
Jeremy Bentham, The Theory of Legislation. Bombay : N.M. Tripathi Private Ltd, [1995].p
.213.
[77]
Malimath Committee Report, Volume 1: Committee on Reform of Criminal Justice
System, [Minster of Home Affairs, Government of India, 2003], p.169.
[78]
Malimath Committee Report, Volume 1: Committee on Reform of Criminal Justice
System, [Minster of Home Affairs, Government of India, 2003], p.265.
[79] Section 354[3] of Cr.P.C.
[80]
AIR 1979 SC 947.
[81]
AIR 1980 SC 898.
[82] Article 6 of the Covenant on Civil and
Political Rights, 1966.
[83]Malimath
Committee Report, Volume 1: Committee on Reform of Criminal Justice System,
[Minster of Home Affairs, Government of India , 2003]. p. 170.
[84]
Malimath Committee Report, Volume 1: Committee on Reform of Criminal Justice
System, [Minster of Home Affairs, Government of India , 2003]. P.
[85]
AIR 1978 SC 1542.
[86]
AIR 1978 SC 1548.
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