Need for deterrent and retributive punshment in India

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This article has been written by Shreya Saxena, a student of Jamnalal Bajaj School of Legal Studies, Banasthali Vidyapith, Rajasthan. In this article she discusses about the need for more speedy trials and the need for strict punishment for the convicted person.

What does a layman understand by the word ‘Law’? The common perception is that law is a body of rules devised by the government. However in the present or modern era, a common man definitely knows something about law from his or her personal experiences, espousal of rights by interest groups or various civil society groups. Crime in today’s world is not an unfamiliar word either. It is regarded as a wrong to an individual or to the society as a whole. Crime is considered as a conduct which the state considers worthy of punishment in order to preserve social order and well-being. Thus it may be defined as an act verboten by law and for performing which the perpetrator is liable for punishment. The law in our nation exists with the sole purpose of binding together the community; it is sovereign and cannot but moreover should not be violated.

It is correct that man is by nature a wicked creature who needs certain teachings and discipline in order to be right. Punishment, in common terms is reward for committing a crime. It is the outcome of a person’s evil deeds. There are various theories of punishment which generally contain policies relating to handling the crime and the criminals. There are four generally accepted theories of punishment viz. Retribution, Deterrence, Reformation and Prevention. In present times, certain substantial questions that are engaging the consciousness of modern penologists are – should the forms of punishment traditionally or generally followed remain the discrete or pre-eminent weapons, of the justice system restraining criminal behavior or should they be supplemented or moreover replaced by a much more flexible or diversified combination of measures of treatments by the reformative, deterrent and retributive theories of punishment.

A Reformative theory of punishment is followed in India. The criminal justice system of our country is based on the simple principle of Abhor the crime, not the criminal. It is taken as a purification process by which an evil doer would wash away his sins. This theory of punishment in India incorporates a simple rationale that the anti social elements in the society require to be coerced by the arm of the constable and at times by the rigour of the iron bars but the question arises, is this theory still an effective tool in the present time in India to impede the criminalism prevailing here when the crime rate is 167.7 per 100,000 people in the country?

It is the bitter truth that those days are gone when a criminal was prompted to understand the difference between a right deed and a wrong one. It was considered that it would stop him or her from further proceeding towards another crime. But that is no more the scene as per the records promulgated by the National Crime Records Bureau in 2016.Today it has been widely seen that the criminals once out of prison commit even more serious forms of crime which leads to another question- should not punishment be given in such a manner that it turns into a dreadful thought which would stop the same person or any other citizen from committing a crime? Most of the people in the country are aware of the prominent case of Priyadarshini MattooA 25 year old law student from Delhi who was raped and murdered in her uncle’s house in the city. The convict – Santosh Kumar Singh was convicted and was awarded a death sentence by the Delhi High Court which was then stayed by the Supreme Court. However, in 2010 Supreme Court converted the death sentence of the convict into life imprisonment. Does converting life incarceration instead of death penalty solve the purpose? Not as per the current scenarios in the country. 

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If we also take a look on the post conviction scenes of the Mattoo case, Santosh Singh, the convict, barely spent four years behind the bars and was led out on parole in March 2011. Upon return, he subsequently filed another application for grant of parole citing several reasons before the Delhi High Court. The High Court granted him a parole in March 2011. The High Court granted him a parole of another month on March 6, 2012 and so on. Does this procedure solve the point of the criminal justice system in India? The convict was considered so easy a criminal that he was released on parole from time to time. It would not at all be wrong if said that we all failed Priyadarshini Mattoo and the lackadaisical approach of the country made future rapists carefree and less law dreading. What should have been followed after the death penalty of the convict instead? The answer lies in the retribution and the deterrent theories of punishment where the sole principle is reap what you sow”. These theories say that a punishment is a necessary consequence of crime which the offender deserves and its severity should be calculated based on the gravity of the wrong done. The concept of deterrence has two key assumptions: Specific punishments imposed on offenders could totally prevent the offender from committing further crimes and also, the fear of punishment could prevent others from committing similar crimes. In the Mattoo case, had the convict been hanged to death in front of the public following the deterrence theory of punishment, the six convicts of Nirbhaya would have not dared to touch her body. 

The same was the situation of the death sentence awarded to the convicts of Nirbhaya Case. The situation of the justice system in the country has floundered to such a level that the convicts of the case have still not been hanged. Why not award those criminals with such severe and brutal a punishment that it would set an example for others and in future anyone would not even let the thought of raping someone in his or her mind? What rights do people guilty of such heinous a crime like rape lay claim to, what else do they deserve but brutal death for destroying a girl’s verve? 

The Indian system of justice and penalization is already an example of “Justice delayed- Justice denied.” The rationale of delaying the justice to a victim is indubitably useless as it consequently leads to the denial of justice to the victim. If the remedy is not affirmed in a timely fashion, it is efficaciously the same as having no redress at all. The “better late than never “logic has no more practicality at the present time. 

A report by Hindustan Times states that 70% of the criminals accused of rape are those offenders who have been behind the bars earlier too for probably the same reason or whatsoever. This phenomenon called “Recidivism*” is prevalent because of the singular reason of lack of deterrence in our punishment system. The total number of repeat criminal offences in 2015 if counted was 2,44,364. Jharkhand leads with 35.5% followed by Chhattisgarh with 17%, Andhra Pradesh with 16.3% and the Union territory of Delhi with 15.8%.

It is not only offences like rape that should be dealt with such strictness; other severe non bailable offences like acid attacks on women, bludgeoning, murders etc. are prevalent which should be pushed out into the light here. The cases of bludgeoning in India are towards a rise. Several cases have become notable throughout the country. One of them was in Bengaluru in 2015 where an inebriated 18 year old severely crushed the head of a one and a half year old to death with a boulder. The reason provided in this case was that ” the convict was upset with the victim’s father and wanted to take a revenge”. The situations have deteriorated to such an extent that the youth of the country is becoming gradually involved in such acts just to “seek revenge” totally keeping aside the fear of law and penalty. 

Another prominent case where a 19 year old college student was brutally bludgeoned to death with pavement blocks made of cement by a group of approximately 10 people in Chinchwad. The convicts have not been prosecuted yet and this showcases or highlights the loop holes in our criminal justice system and the application of the reformative theories of punishment in India. There seems no way to reform the criminal who killed a one and half year old brutally with a boulder and to teach him the difference between the correct and the incorrect in a country where a 12 year old is considered intelligent enough to understand the concept of theft and that it is wrong. 

In Punjab, a man was charged with bludgeoning his wife to death by hitting her with a sewing machine in 2016. Had that 18 year old boy back in Bengaluru been executed in 2015 itself thereby retributively judging the gravity of his deed, the man in Punjab here would have no guts to kill his wife by continuously hitting her with a sewing machine the very next year. It seems that in a country like India which “claims” to be the largest democracy of the world, people have been given too much ease when it comes to law and order and the results of committing any offence. 

Meanwhile talking about the cases of acid attacks on women, we come across various aspects. In a society where the masculine gender dominates, many women have been facing exploitation and oppression at each and every step of their lives and face endless difficulties throughout. The case of Preethi Rathi who was a nursing student was one important case in this context. Preethi, along with her father, uncle and aunt reached Bandra Station in Mumbai when an unidentified man, with his face half concealed threw acid on her face and scampered away. The victim succumbed to her injuries after going through an unbearable pain. The question arises here that what gave the man courage to throw acid on her face. Moreover, it was seen that the attacker smiled to the media and flashed off a victory sign after the court sentenced him to death. Had the laws been strict enough to bind his thoughts and not let them grow into such a gruesome act, the scene would have been somewhat else. 

Haseena Hussain who was an 18 year old computer professional was attacked by the head of the company she earlier worked for. The reason was that the convict- Joseph Rodriguez could not bear to see her working for some other firm. The question is that who gave the right to that man to consider Haseena as his property and that he had the power to direct her and order her to do as whatever pleased him. Even today, Haseena cannot walk without support and cannot sit straight. The cases are on a rise in our country because of lack of severe deterrence and prosecution in the public and in the minds of the wrongdoers. 

Thus concluding, the theories of punishment need to be changed from reformative to retributive and deterrent as it would create a fear in the minds of the wrongdoers and curb the increasing crime rate in the country. This is a very practical aspect presented here which can be easily understood and applied.

If you want to read more about capital punishment in India Click Here

If you want to read more about punishment for gang rape Click Here

 

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